**Exhibit 99.1**

 

TRINITY CAPITAL CORPORATIONas Issuer

 

 

INDENTURE

 

Dated as of June 29, 2005

 

 

WILMINGTON TRUST COMPANYas Trustee

 

 

FIXED RATE JUNIOR SUBORDINATED DEBT SECURITIES DUE 2035

 

----

 

**TABLE OF CONTENTS**

 
| ARTICLE I                                     DEFINITIONS |               |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------|
|                                                                                                                                                                                                                                               | Section 1.01. | Definitions |   |
|                                                                                                                                                                                                                                               |               |   |   |
| ARTICLE II                                 DEBT SECURITIES                    |               |
|                                                                                                                                                                                                                                               | Section 2.01. | Authentication and Dating |   |
|                                                                                                                                                                                                                                               | Section 2.02. | Form of Trustee’s Certificate of Authentication |   |
|                                                                                                                                                                                                                                               | Section 2.03. | Form and Denomination of Debt Securities |   |
|                                                                                                                                                                                                                                               | Section 2.04. | Execution of Debt Securities |   |
|                                                                                                                                                                                                                                               | Section 2.05. | Exchange and Registration of Transfer of Debt  Securities |   |
|                                                                                                                                                                                                                                               | Section 2.06. | Mutilated, Destroyed, Lost or Stolen Debt  Securities |   |
|                                                                                                                                                                                                                                               | Section 2.07. | Temporary Debt Securities |   |
|                                                                                                                                                                                                                                               | Section 2.08. | Payment of Interest |   |
|                                                                                                                                                                                                                                               | Section 2.09. | Cancellation of Debt Securities Paid, etc. |   |
|                                                                                                                                                                                                                                               | Section 2.10. | Computation of Interest |   |
|                                                                                                                                                                                                                                               | Section 2.11. | Extension of Interest Payment Period |   |
|                                                                                                                                                                                                                                               | Section 2.12. | CUSIP Numbers |   |
|                                                                                                                                                                                                                                               |               |   |   |
| ARTICLE III                             PARTICULAR COVENANTS OF THE COMPANY                       |               |
|                                                                                                                                                                                                                                               | Section 3.01. | Payment of Principal, Premium and Interest;  Agreed Treatment of the Debt Securities |   |
|                                                                                                                                                                                                                                               | Section 3.02. | Offices for Notices and Payments, etc. |   |
|                                                                                                                                                                                                                                               | Section 3.03. | Appointments to Fill Vacancies in Trustee’s  Office |   |
|                                                                                                                                                                                                                                               | Section 3.04. | Provision as to Paying Agent |   |
|                                                                                                                                                                                                                                               | Section 3.05. | Certificate to Trustee |   |
|                                                                                                                                                                                                                                               | Section 3.06. | Additional Interest |   |
|                                                                                                                                                                                                                                               | Section 3.07. | Compliance  with Consolidation Provisions |   |
|                                                                                                                                                                                                                                               | Section 3.08. | Limitation  on Dividends |   |
|                                                                                                                                                                                                                                               | Section 3.09. | Covenants  as to the Trust |   |
|                                                                                                                                                                                                                                               |               |   |   |
| ARTICLE IV                             LISTS  AND REPORTS BY THE COMPANY AND THE TRUSTEE          |               |
|                                                                                                                                                                                                                                               | Section 4.01. | Securityholders’  Lists |   |
|                                                                                                                                                                                                                                               | Section 4.02. | Preservation  and Disclosure of Lists |   |
|                                                                                                                                                                                                                                               | Section 4.03. | Financial  and Other Information |   |

 

i

----

 
| ARTICLE V                                 REMEDIES  OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT |               |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------|
|                                                                                                                                                                                                                                                                                 | Section 5.01. | Events of  Default |   |
|                                                                                                                                                                                                                                                                                 | Section 5.02. | Payment of  Debt Securities on Default; Suit Therefor |   |
|                                                                                                                                                                                                                                                                                 | Section 5.03. | Application  of Moneys Collected by Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 5.04. | Proceedings  by Securityholders |   |
|                                                                                                                                                                                                                                                                                 | Section 5.05. | Proceedings  by Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 5.06. | Remedies Cumulative  and Continuing |   |
|                                                                                                                                                                                                                                                                                 | Section 5.07. | Direction  of Proceedings and Waiver of Defaults by Majority of Securityholders |   |
|                                                                                                                                                                                                                                                                                 | Section 5.08. | Notice of  Defaults |   |
|                                                                                                                                                                                                                                                                                 | Section 5.09. | Undertaking  to Pay Costs |   |
|                                                                                                                                                                                                                                                                                 |               |   |   |
| ARTICLE VI                             CONCERNING  THE TRUSTEE                                                                      |               |
|                                                                                                                                                                                                                                                                                 | Section 6.01. | Duties and  Responsibilities of Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 6.02. | Reliance  on Documents, Opinions, etc. |   |
|                                                                                                                                                                                                                                                                                 | Section 6.03. | No  Responsibility for Recitals, etc. |   |
|                                                                                                                                                                                                                                                                                 | Section 6.04. | Trustee,  Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own  Debt Securities |   |
|                                                                                                                                                                                                                                                                                 | Section 6.05. | Moneys to  be Held in Trust |   |
|                                                                                                                                                                                                                                                                                 | Section 6.06. | Compensation  and Expenses of Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 6.07. | Officers’  Certificate as Evidence |   |
|                                                                                                                                                                                                                                                                                 | Section 6.08. | Eligibility  of Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 6.09. | Resignation  or Removal of Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 6.10. | Acceptance  by Successor Trustee |   |
|                                                                                                                                                                                                                                                                                 | Section 6.11. | Succession  by Merger, etc. |   |
|                                                                                                                                                                                                                                                                                 | Section 6.12. | Authenticating  Agents |   |
|                                                                                                                                                                                                                                                                                 |               |   |   |
| ARTICLE VII                         CONCERNING THE SECURITYHOLDERS                                                                                      |               |
|                                                                                                                                                                                                                                                                                 | Section 7.01. | Action by  Securityholders |   |
|                                                                                                                                                                                                                                                                                 | Section 7.02. | Proof of  Execution by Securityholders |   |
|                                                                                                                                                                                                                                                                                 | Section 7.03. | Who Are  Deemed Absolute Owners |   |
|                                                                                                                                                                                                                                                                                 | Section 7.04. | Debt  Securities Owned by Company Deemed Not Outstanding |   |
|                                                                                                                                                                                                                                                                                 | Section 7.05. | Revocation  of Consents; Future Holders Bound |   |

 

ii

----

 
| ARTICLE VIII                     SECURITYHOLDERS’ MEETINGS                                                             |                |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------|
|                                                                                                                                                                                                                                 | Section 8.01.  | Purposes of  Meetings |   |
|                                                                                                                                                                                                                                 | Section 8.02.  | Call of  Meetings by Trustee |   |
|                                                                                                                                                                                                                                 | Section 8.03.  | Call of  Meetings by Company or Securityholders |   |
|                                                                                                                                                                                                                                 | Section 8.04.  | Qualifications  for Voting |   |
|                                                                                                                                                                                                                                 | Section 8.05.  | Regulations |   |
|                                                                                                                                                                                                                                 | Section 8.06.  | Voting |   |
|                                                                                                                                                                                                                                 | Section 8.07.  | Quorum; Actions |   |
|                                                                                                                                                                                                                                 |                |   |   |
| ARTICLE IX                            SUPPLEMENTAL  INDENTURES                           |                |
|                                                                                                                                                                                                                                 | Section 9.01.  | Supplemental  Indentures without Consent of Securityholders |   |
|                                                                                                                                                                                                                                 | Section 9.02.  | Supplemental  Indentures with Consent of Securityholders |   |
|                                                                                                                                                                                                                                 | Section 9.03.  | Effect of  Supplemental Indentures |   |
|                                                                                                                                                                                                                                 | Section 9.04.  | Notation on  Debt Securities |   |
|                                                                                                                                                                                                                                 | Section 9.05.  | Evidence of  Compliance of Supplemental Indenture to be Furnished to Trustee |   |
|                                                                                                                                                                                                                                 |                |   |   |
| ARTICLE X                                REDEMPTION  OF SECURITIES   |                |
|                                                                                                                                                                                                                                 | Section 10.01. | Optional  Redemption |   |
|                                                                                                                                                                                                                                 | Section 10.02. | Special  Event Redemption |   |
|                                                                                                                                                                                                                                 | Section 10.03. | Notice of  Redemption; Selection of Debt Securities |   |
|                                                                                                                                                                                                                                 | Section 10.04. | Payment of  Debt Securities Called for Redemption |   |
|                                                                                                                                                                                                                                 |                |   |   |
| ARTICLE XI                            CONSOLIDATION,  MERGER, SALE, CONVEYANCE AND LEASE |                |
|                                                                                                                                                                                                                                 | Section 11.01. | Company May Consolidate,  etc., on Certain Terms |   |
|                                                                                                                                                                                                                                 | Section 11.02. | Successor  Entity to be Substituted |   |
|                                                                                                                                                                                                                                 | Section 11.03. | Opinion of  Counsel to be Given to Trustee |   |
|                                                                                                                                                                                                                                 |                |   |   |
| ARTICLE XII                        SATISFACTION  AND DISCHARGE OF INDENTURE                                  |                |
|                                                                                                                                                                                                                                 | Section 12.01. | Discharge  of Indenture |   |
|                                                                                                                                                                                                                                 | Section 12.02. | Deposited  Moneys to be Held in Trust by Trustee |   |
|                                                                                                                                                                                                                                 | Section 12.03. | Paying  Agent to Repay Moneys Held |   |
|                                                                                                                                                                                                                                 | Section 12.04. | Return of  Unclaimed Moneys |   |

 

iii

----

 
| ARTICLE XIII                    IMMUNITY OF  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS                                                                                     |                |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------|
|                                                                                                                                                                                                                                                                                     | Section 13.01. | Indenture  and Debt Securities Solely Corporate Obligations |   |
|                                                                                                                                                                                                                                                                                     |                |   |   |
| ARTICLE XIV                    MISCELLANEOUS  PROVISIONS                                                                                                                             |                |
|                                                                                                                                                                                                                                                                                     | Section 14.01. | Successors |   |
|                                                                                                                                                                                                                                                                                     | Section 14.02. | Official  Acts by Successor Entity |   |
|                                                                                                                                                                                                                                                                                     | Section 14.03. | Surrender  of Company Powers |   |
|                                                                                                                                                                                                                                                                                     | Section 14.04. | Addresses  for Notices, etc. |   |
|                                                                                                                                                                                                                                                                                     | Section 14.05. | Governing Law |   |
|                                                                                                                                                                                                                                                                                     | Section 14.06. | Evidence of  Compliance with Conditions Precedent |   |
|                                                                                                                                                                                                                                                                                     | Section 14.07. | Business  Day Convention. |   |
|                                                                                                                                                                                                                                                                                     | Section 14.08. | Table of  Contents, Headings, etc. |   |
|                                                                                                                                                                                                                                                                                     | Section 14.09. | Execution  in Counterparts |   |
|                                                                                                                                                                                                                                                                                     | Section 14.10. | Separability |   |
|                                                                                                                                                                                                                                                                                     | Section 14.11. | Assignment |   |
|                                                                                                                                                                                                                                                                                     | Section 14.12. | Acknowledgment  of Rights |   |
|                                                                                                                                                                                                                                                                                     |                |   |   |
| ARTICLE XV                        SUBORDINATION  OF DEBT SECURITIES                                                                                              |                |
|                                                                                                                                                                                                                                                                                     | Section 15.01  | Agreement  to Subordinate |   |
|                                                                                                                                                                                                                                                                                     | Section 15.02. | Default on  Senior Indebtedness |   |
|                                                                                                                                                                                                                                                                                     | Section 15.03. | Liquidation;  Dissolution; Bankruptcy |   |
|                                                                                                                                                                                                                                                                                     | Section 15.04. | Subrogation |   |
|                                                                                                                                                                                                                                                                                     | Section 15.05. | Trustee to  Effectuate Subordination |   |
|                                                                                                                                                                                                                                                                                     | Section 15.06. | Notice by  the Company |   |
|                                                                                                                                                                                                                                                                                     | Section 15.07. | Rights of  the Trustee; Holders of Senior Indebtedness |   |
|                                                                                                                                                                                                                                                                                     | Section 15.08. | Subordination  May Not Be Impaired |   |
|                                                                                                                                                                                                                                                                                     |                |   |   |
| EXHIBIT A                                  FORM OF  FIXED RATE JUNIOR SUBORDINATED DEBT SECURITY DUE 2035 |                |
|                                                                                                                                                                                                                                                                                     |                |   |   |
| EXHIBIT B                                    FORM OF  CERTIFICATE OF OFFICER OF THE COMPANY     |                |

 

iv

----

 

THISINDENTURE, dated as of June 29, 2005, between Trinity Capital Corporation,a financial holding company incorporated in New Mexico (hereinafter sometimescalled the “Company”), and Wilmington Trust Company, a Delaware bankingcorporation, as trustee (hereinafter sometimes called the “Trustee”).

 

W I T N E S S E T H :

 

WHEREAS,for its lawful corporate purposes, the Company has duly authorized the issuanceof its Fixed Rate Junior Subordinated Debt Securities due 2035 (the “DebtSecurities”) under this Indenture and to provide, among other things, for theexecution and authentication, delivery and administration thereof, the Companyhas duly authorized the execution of this Indenture.

 

NOW,THEREFORE, in consideration of the premises, and the purchase of the DebtSecurities by the holders thereof, the Company covenants and agrees with theTrustee for the equal and proportionate benefit of the respective holders fromtime to time of the Debt Securities as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01.                             Definitions.

 

Theterms defined in this Section 1.01 (except as herein otherwise expresslyprovided or unless the context otherwise requires) for all purposes of thisIndenture and of any indenture supplemental hereto shall have the respectivemeanings specified in this Section 1.01. All accounting terms used hereinand not expressly defined shall have the meanings assigned to such terms inaccordance with generally accepted accounting principles and the term “generallyaccepted accounting principles” means such accounting principles as aregenerally accepted in the United States at the time of any computation.  The words “herein,” “hereof” and “hereunder”and other words of similar import refer to this Indenture as a whole and not toany particular Article, Section or other subdivision.

 

“AdditionalInterest” shall have the meaning set forth in Section 3.06.

 

“AdditionalProvisions” shall have the meaning set forth in Section 15.01.

 

“AuthenticatingAgent” means any agent or agents of the Trustee which at the time shall beappointed and acting pursuant to Section 6.12.

 

“BankruptcyLaw” means Title 11, U.S. Code, or any similar federal or state law for therelief of debtors.

 

“Boardof Directors” means the board of directors or the executive committee or anyother duly authorized designated officers of the Company.

 

----

 

“BoardResolution” means a copy of a resolution certified by the Secretary or anAssistant Secretary of the Company to have been duly adopted by the Board ofDirectors and to be in full force and effect on the date of such certificationand delivered to the Trustee.

 

“BusinessDay” means any day other than a Saturday, Sunday or any other day on whichbanking institutions in Wilmington, Delaware, New York City or LosAlamos, New Mexico are permitted or required by any applicable law or executiveorder to close.

 

“CapitalSecurities” means undivided beneficial interests in the assets of the Trustwhich are designated as “Capital Securities” andrank *pari passu* with Common Securities issuedby the Trust; provided, however, that if an Event of Default (asdefined in the Declaration) has occurred and is continuing, the rights ofholders of such Common Securities to payment in respect of distributions andpayments upon liquidation, redemption and otherwise are subordinated to therights of holders of such Capital Securities.

 

“CapitalSecurities Guarantee” means the guarantee agreement that the Company will enterinto with Wilmington Trust Company or other Persons that operates directly orindirectly for the benefit of holders of Capital Securities of the Trust.

 

“CapitalTreatment Event” means the receipt by the Company and the Trust of an Opinionof Counsel experienced in such matters to the effect that, as a result of anyamendment to, or change in, the laws, rules or regulations of the UnitedStates or any political subdivision thereof or therein, or as the result of anyofficial or administrative pronouncement or action or decision interpreting orapplying such laws, rules or regulations, which amendment or change iseffective or which pronouncement, action or decision is announced on or afterthe date of original issuance of the Debt Securities, there is more than aninsubstantial risk that the Company will not, within 90 days of the date ofsuch opinion, be entitled to treat an amount equal to the aggregate LiquidationAmount of the Capital Securities as “Tier 1 Capital” (or the then equivalentthereof) for purposes of the capital adequacy guidelines of the Federal Reserve(or any successor regulatory authority with jurisdiction over financial holdingcompanies), as then in effect and applicable to the Company, provided, however,that the distribution of the Debt Securities in connection with the liquidationof the Trust by the Company shall not in and of itself constitute a CapitalTreatment Event unless such liquidation shall have occurred in connection witha Tax Event or an Investment Company Event.

 

“Certificate”means a certificate signed by any one of the principal executive officer, theprincipal financial officer or the principal accounting officer of the Company.

 

“Code”means the Internal Revenue Code of 1986, as amended.

 

“CommonSecurities” means undivided beneficial interests in the assets of the Trustwhich are designated as “Common Securities” and rank *pari passu* with Capital Securities issued by the Trust; provided,however, that if an Event of Default (as defined in the Declaration) hasoccurred and is continuing, the rights of holders of such Common Securities topayment in respect of distributions and payments upon liquidation, redemptionand otherwise are subordinated to the rights of holders of such CapitalSecurities.

 

2

----

 

“Company”means Trinity Capital Corporation, a financial holding company incorporated inNew Mexico, and, subject to the provisions of Article XI, shall includeits successors and assigns.

 

“DebtSecurity” or “Debt Securities” has the meaning stated in the first recital ofthis Indenture.

 

“DebtSecurity Register” has the meaning specified in Section 2.05.

 

“Declaration”means the Amended and Restated Declaration of Trust of the Trust dated as of June 29,2005, as amended or supplemented from time to time.

 

“Default”means any event, act or condition that with notice or lapse of time, or both,would constitute an Event of Default.

 

“DefaultedInterest” has the meaning set forth in Section 2.08.

 

“DeferredInterest” has the meaning set forth in Section 2.11.

 

“Eventof Default” means any event specified in Section 5.01, which has continuedfor the period of time, if any, and after the giving of the notice, if any,therein designated.

 

“ExchangeAct” means the Securities Exchange Act of 1934, as amended.

 

“ExtensionPeriod” has the meaning set forth in Section 2.11.

 

“FederalReserve” means the Board of Governors of the Federal Reserve System.

 

“Indenture”means this instrument as originally executed or, if amended or supplemented asherein provided, as so amended or supplemented, or both.

 

“InstitutionalTrustee”  has the meaning set forth inthe Declaration.

 

“InterestPayment Date” means February 23, May 23, August 23 and November 23of each year, commencing on August 23, 2005, during the term of thisIndenture.

 

“InterestPeriod” has the meaning set forth in Section 2.08.

 

“InterestRate” means, with respect to any Interest Period, a per annum rate of interestequal to 6.88%.

 

“InvestmentCompany Event” means the receipt by the Company and the Trust of an Opinion ofCounsel experienced in such matters to the effect that, as a result of a changein law or regulation or written change in interpretation or application of lawor regulation by any legislative body, court, governmental agency or regulatoryauthority, there is more than an insubstantial risk that the Trust is or, within90 days of the date of such opinion will be, considered an “investment company”that is required to be registered under the Investment

 

3

----

 

Company Act of 1940, asamended, which change becomes effective on or after the date of the originalissuance of the Debt Securities.

 

“LiquidationAmount” means the stated amount of $1,000 per Trust Security.

 

“MaturityDate” means November 23, 2035.

 

“Officers’Certificate” means a certificate signed by the Chairman of the Board, the ViceChairman, the President or any Vice President, and by the Chief FinancialOfficer, the Treasurer, an Assistant Treasurer, the Comptroller, an AssistantComptroller, the Secretary or an Assistant Secretary of the Company, and deliveredto the Trustee.  Each such certificateshall include the statements provided for in Section 14.06 if and to theextent required by the provisions of such Section.

 

“Opinionof Counsel” means an opinion in writing signed by legal counsel, who may be anemployee of or counsel to the Company, or may be other counsel reasonablysatisfactory to the Trustee.  Each suchopinion shall include the statements provided for in Section 14.06 if andto the extent required by the provisions of such Section.

 

Theterm “outstanding,” when used with reference to Debt Securities, subject to theprovisions of Section 7.04, means, as of any particular time, all DebtSecurities authenticated and delivered by the Trustee or the AuthenticatingAgent under this Indenture, except

 

(a)                                  Debt Securities theretofore canceled by theTrustee or the Authenticating Agent or delivered to the Trustee forcancellation;

 

(b)                                 Debt Securities, or portions thereof, for thepayment or redemption of which moneys in the necessary amount shall have beendeposited in trust with the Trustee or with any Paying Agent (other than theCompany) or shall have been set aside and segregated in trust by the Company(if the Company shall act as its own Paying Agent); provided, that, ifsuch Debt Securities, or portions thereof, are to be redeemed prior to maturitythereof, notice of such redemption shall have been given as provided inArticles X and XIV or provision satisfactory to the Trustee shall have beenmade for giving such notice; and

 

(c)                                  Debt Securities paid pursuant to Section 2.06or in lieu of or in substitution for which other Debt Securities shall havebeen authenticated and delivered pursuant to the terms of Section 2.06unless proof satisfactory to the Company and the Trustee is presented that anysuch Debt Securities are held by bona fide holders in due course.

 

“Paying Agent” means any paying agent for the Debt Securities appointedpursuant to Section 3.04.

 

“Person”means any individual, corporation, limited liability company, partnership,joint venture, association, joint-stock company, trust, unincorporatedorganization or government or any agency or political subdivision thereof.

 

4

----

 

“PlacementAgreement” means the Placement Agreement dated June 29, 2005 among theCompany, the Trust and Wachovia Capital Markets, LLC.

 

“PredecessorSecurity” of any particular Debt Security means every previous Debt Securityevidencing all or a portion of the same debt as that evidenced by suchparticular Debt Security; and, for the purposes of this definition, any DebtSecurity authenticated and delivered under Section 2.06 in lieu of a lost,destroyed or stolen Debt Security shall be deemed to evidence the same debt asthe lost, destroyed or stolen Debt Security.

 

“PrincipalOffice of the Trustee” means the office of the Trustee, at which at anyparticular time its corporate trust business shall be principally administered,which at all times shall be located within the United States and at the time ofthe execution of this Indenture shall be Rodney Square North, 1100 North MarketStreet, Wilmington, Delaware 19890-0001.

 

“RedemptionDate” has the meaning set forth in Section 10.01.

 

“RedemptionPrice” means 100% of the principal amount of the Debt Securities being redeemedplus accrued and unpaid interest on such Debt Securities to the Redemption Dateor, in the case of redemption at maturity, the Maturity Date, or, in the caseof a redemption due to the occurrence of a Special Event, to the SpecialRedemption Date if such Special Redemption Date is on or after August 23,2010.

 

“ResponsibleOfficer” means, with respect to the Trustee, any officer within the PrincipalOffice of the Trustee with direct responsibility for the administration of theIndenture, including any vice-president, any assistant vice-president, anysecretary, any assistant secretary, the treasurer, any assistant treasurer, anytrust officer or other officer of the Principal Office of the Trusteecustomarily performing functions similar to those performed by any of the abovedesignated officers and also means, with respect to a particular corporatetrust matter, any other officer to whom such matter is referred because of thatofficer’s knowledge of and familiarity with the particular subject.

 

“SecuritiesAct” means the Securities Act of 1933, as amended.

 

“Securityholder,”“holder of Debt Securities” or other similar terms, means any Person in whosename at the time a particular Debt Security is registered on the Debt SecurityRegister.

 

“SeniorIndebtedness” means, with respect to the Company, (i) the principal,premium, if any, and interest in respect of (A) indebtedness of theCompany for money borrowed, similar obligations arising from off-balance sheetguarantees and direct credit substitutes and (B) indebtedness evidenced bysecurities, debentures, notes, bonds or other similar instruments issued by theCompany; (ii) all capital lease obligations of the Company; (iii) allobligations of the Company issued or assumed as the deferred purchase price ofproperty, all conditional sale obligations of the Company and all obligationsof the Company under any title retention agreement (but excluding tradeaccounts payable arising in the ordinary course of business); (iv) allobligations of the Company for the reimbursement of any letter of credit, anybanker’s acceptance, any security purchase facility, any repurchase agreementor similar arrangement, all obligations associated with derivative productssuch as interest rate and foreign

 

5

----

 

exchange contracts andcommodity contracts, any interest rate swap, any other hedging arrangement, anyobligation under options or any similar credit or other transaction; (v) allobligations of the type referred to in clauses (i) through (iv) aboveof other Persons for the payment of which the Company is responsible or liableas obligor, guarantor or otherwise; and (vi) all obligations of the typereferred to in clauses (i) through (v) above of other Personssecured by any lien on any property or asset of the Company (whether or notsuch obligation is assumed by the Company), whether incurred on or prior to thedate of this Indenture or thereafter incurred, unless, with the prior approvalof the Federal Reserve if not otherwise generally approved, it is provided inthe instrument creating or evidencing the same or pursuant to which the same isoutstanding, that such obligations are not superior or are *pari passu* in right of payment to the DebtSecurities ; provided, however, that Senior Indebtedness shall not include (A) anydebt securities issued to any trust other than the Trust (or a trustee of suchtrust) that is a financing vehicle of the Company (a “financing entity”), inconnection with the issuance by such financing entity of equity or othersecurities in transactions substantially similar in structure to thetransactions contemplated hereunder and in the Declaration or (B) anyguarantees of the Company in respect of the equity or other securities of anyfinancing entity referred to in clause (A) above.

 

“SpecialEvent” means any of a Tax Event, an Investment Company Event or a CapitalTreatment Event.

 

“SpecialRedemption Date” has the meaning set forth in Section 10.02.

 

“SpecialRedemption Price” means, with respect to the redemption of any Debt Securityfollowing a Special Event, an amount in cash equal to the percentage for theprincipal amount of the Debt Securities that is specified below for the SpecialRedemption Date plus unpaid interest accrued thereon to the Special RedemptionDate:

 
| **Special Event Redemption  During  Period Beginning On** | ** ** | **Percentage of Principal Amount** |
|-----------------------------------------------------------|------------|------------------------------------|
| June 29, 2005                                        |       | 104.40                             |
| August 23, 2006                                      |       | 103.52                             |
| August 23, 2007                                      |       | 102.64                             |
| August 23, 2008                                      |       | 101.76                             |
| August 23, 2009                                      |       | 100.88                             |
| August 23, 2010                                      |       | 100.00                             |

 

“Subsidiary”means, with respect to any Person, (i) any corporation, at least amajority of the outstanding voting stock of which is owned, directly orindirectly, by such Person or by one or more of its Subsidiaries, or by suchPerson and one or more of its Subsidiaries, (ii) any general partnership,joint venture or similar entity, at least a majority of the outstandingpartnership or similar interests of which shall at the time be owned by suchPerson, or by one or more of its Subsidiaries, or by such Person and one ormore of its Subsidiaries, and (iii) any limited partnership of which suchPerson or any of its Subsidiaries is a general partner.  For the purposes of this definition, “votingstock” means shares, interests, participations or other

 

6

----

 

equivalents in the equityinterest (however designated) in such Person having ordinary voting power forthe election of a majority of the directors (or the equivalent) of such Person,other than shares, interests, participations or other equivalents having suchpower only by reason of the occurrence of a contingency.

 

“TaxEvent” means the receipt by the Company and the Trust of an Opinion of Counselexperienced in such matters to the effect that, as a result of any amendment toor change (including any announced prospective change) in the laws or anyregulations thereunder of the United States or any political subdivision ortaxing authority thereof or therein, or as a result of any officialadministrative pronouncement (including any private letter ruling, technicaladvice memorandum, regulatory procedure, notice or announcement (an “AdministrativeAction”)) or judicial decision interpreting or applying such laws orregulations, regardless of whether such Administrative Action or judicialdecision is issued to or in connection with a proceeding involving the Companyor the Trust and whether or not subject to review or appeal, which amendment,clarification, change, Administrative Action or decision is enacted, promulgatedor announced, in each case on or after the date of original issuance of theDebt Securities, there is more than an insubstantial risk that: (i) theTrust is, or will be within 90 days of the date of such opinion, subject toUnited States federal income tax with respect to income received or accrued onthe Debt Securities; (ii) interest payable by the Company on the DebtSecurities is not, or within 90 days of the date of such opinion, will not be,deductible by the Company, in whole or in part, for United States federalincome tax purposes; or (iii) the Trust is, or will be within 90 days ofthe date of such opinion, subject to or otherwise required to pay, or requiredto withhold from distributions to holders of Trust Securities, more than a deminimis amount of other taxes (including withholding taxes), duties,assessments or other governmental charges.

 

“Trust”means Trinity Capital Trust IV, a Delaware statutory trust, or any othersimilar trust created for the purpose of issuing Capital Securities inconnection with the issuance of Debt Securities under this Indenture, of whichthe Company is the sponsor.

 

“TrustIndenture Act” means the Trust Indenture Act of 1939, as amended fromtime-to-time, or any successor legislation.

 

“TrustSecurities” means Common Securities and Capital Securities of the Trust.

 

“Trustee”means the Person identified as “Trustee” in the first paragraph hereof, and,subject to the provisions of Article VI hereof, shall also include itssuccessors and assigns as Trustee hereunder.

 

“UnitedStates” means the United States of America and the District of Columbia.

 

“U.S.Person” has the meaning given to United States Person as set forth in Section 7701(a)(30)of the Code.

 

7

----

 

ARTICLE IIDEBT SECURITIES

 

Section 2.01.                             Authentication and Dating.

 

Uponthe execution and delivery of this Indenture, or from time to time thereafter,Debt Securities in an aggregate principal amount not in excess of $10,310,000may be executed and delivered by the Company to the Trustee for authentication,and the Trustee shall thereupon authenticate and make available for deliverysaid Debt Securities to or upon the written order of the Company, signed by itsChairman of the Board of Directors, Vice Chairman, President or Chief FinancialOfficer or one of its Vice Presidents, without any further action by theCompany hereunder.  In authenticatingsuch Debt Securities, and accepting the additional responsibilities under thisIndenture in relation to such Debt Securities, the Trustee shall be entitled toreceive, and (subject to Section 6.01) shall be fully protected in relyingupon a copy of any Board Resolution or Board Resolutions relating thereto and,if applicable, an appropriate record of any action taken pursuant to suchresolution, in each case certified by the Secretary or an Assistant Secretaryor other officer with appropriate delegated authority of the Company as thecase may be.

 

TheTrustee shall have the right to decline to authenticate and deliver any DebtSecurities under this Section if the Trustee, being advised by counsel,determines that such action may not lawfully be taken or if a ResponsibleOfficer of the Trustee in good faith shall determine that such action wouldexpose the Trustee to personal liability to existing securityholders.

 

Thedefinitive Debt Securities shall be typed, printed, lithographed or engraved onsteel engraved borders or may be produced in any other manner, all asdetermined by the officers executing such Debt Securities, as evidenced bytheir execution of such Debt Securities.

 

Section 2.02.                             Form of Trustee’s Certificate ofAuthentication.

 

TheTrustee’s certificate of authentication on all Debt Securities shall be insubstantially the following form:

 

Thiscertificate represents Debt Securities referred to in the within-mentionedIndenture.

 

WILMINGTONTRUST COMPANY, not in its individual capacity but solely as trustee

 
| By                  |   |   |
|---------------------|--------|--------|
| Authorized  Officer |

 

Section 2.03.                             Form and Denomination of Debt Securities.

 

TheDebt Securities shall be substantially in the form of Exhibit Ahereto.  The Debt Securities shall be inregistered, certificated form without coupons and in minimum denominations of$100,000 and any multiple of $1,000 in excess thereof.  The Debt Securities

 

8

----

 

shall be numbered, lettered,or otherwise distinguished in such manner or in accordance with such plans asthe officers executing the same may determine with the approval of the Trusteeas evidenced by the execution and authentication thereof.

 

Section 2.04.                             Execution of Debt Securities.

 

TheDebt Securities shall be signed in the name and on behalf of the Company by themanual or facsimile signature of its Chairman of the Board of Directors, ViceChairman, President or Chief Financial Officer or one of its Executive VicePresidents, Senior Vice Presidents, Vice Presidents or any other officerauthorized by the Board of Directors to sign documents in the name and onbehalf of the Company, under its corporate seal (if then legally required)which may be affixed thereto or printed, engraved or otherwise reproducedthereon, by facsimile or otherwise, and which need not be attested.  Only such Debt Securities as shall bearthereon a certificate of authentication substantially in the form herein beforerecited, executed by the Trustee or the Authenticating Agent by the manualsignature of an authorized officer, shall be entitled to the benefits of thisIndenture or be valid or obligatory for any purpose.  Such certificate by the Trustee or theAuthenticating Agent upon any Debt Security executed by the Company shall beconclusive evidence that the Debt Security so authenticated has been dulyauthenticated and delivered hereunder and that the holder is entitled to thebenefits of this Indenture.

 

Incase any officer of the Company who shall have signed any of the DebtSecurities shall cease to be such officer before the Debt Securities so signedshall have been authenticated and delivered by the Trustee or theAuthenticating Agent, or disposed of by the Company, such Debt Securitiesnevertheless may be authenticated and delivered or disposed of as though thePerson who signed such Debt Securities had not ceased to be such officer of theCompany; and any Debt Security may be signed on behalf of the Company by suchPersons as, at the actual date of the execution of such Debt Security, shall bethe proper officers of the Company, although at the date of the execution ofthis Indenture any such person was not such an officer.

 

EveryDebt Security shall be dated the date of its authentication.

 

Section 2.05.                             Exchange and Registration of Transfer of DebtSecurities.

 

TheCompany shall cause to be kept, at the office or agency maintained for thepurpose of registration of transfer and for exchange as provided in Section 3.02,a register (the “Debt Security Register”) for the Debt Securities issuedhereunder in which, subject to such reasonable regulations as it may prescribe,the Company shall provide for the registration and transfer of all DebtSecurities as provided in this Article II. Such register shall be in written form or in any other form capable ofbeing converted into written form within a reasonable time.

 

DebtSecurities to be exchanged may be surrendered at the Principal Office of theTrustee or at any office or agency to be maintained by the Company for suchpurpose as provided in Section 3.02, and the Company shall execute, theCompany or the Trustee shall register and the Trustee or the AuthenticatingAgent shall authenticate and make available for delivery in exchange thereforthe Debt Security or Debt Securities which the Securityholder

 

9

----

 

making the exchange shall beentitled to receive.  Upon duepresentment for registration of transfer of any Debt Security at the PrincipalOffice of the Trustee or at any office or agency of the Company maintained forsuch purpose as provided in Section 3.02, the Company shall execute, theCompany or the Trustee shall register and the Trustee or the AuthenticatingAgent shall authenticate and make available for delivery in the name of thetransferee or transferees a new Debt Security for a like aggregate principalamount. Registration or registration of transfer of any Debt Security by theTrustee or by any agent of the Company appointed pursuant to Section 3.02,and delivery of such Debt Security, shall be deemed to complete theregistration or registration of transfer of such Debt Security.

 

AllDebt Securities presented for registration of transfer or for exchange orpayment shall (if so required by the Company or the Trustee or theAuthenticating Agent) be duly endorsed by, or be accompanied by, a writteninstrument or instruments of transfer in form satisfactory to the Company and eitherthe Trustee or the Authenticating Agent duly executed by, the holder or suchholder’s attorney duly authorized in writing.

 

Noservice charge shall be made for any exchange or registration of transfer ofDebt Securities, but the Company or the Trustee may require payment of a sumsufficient to cover any tax, fee or other governmental charge that may beimposed in connection therewith.

 

TheCompany or the Trustee shall not be required to exchange or register a transferof any Debt Security for a period of 15 days immediately preceding the date ofselection of Debt Securities for redemption.

 

Notwithstandingthe foregoing, Debt Securities may not be transferred except in compliance withthe restricted securities legend set forth below, unless otherwise determinedby the Company in accordance with applicable law, which legend shall be placedon each Debt Security:

 

THISSECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLESECURITIES LAWS.  NEITHER THIS SECURITYNOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OFSUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCEHEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TOTHE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TOAN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITEDINVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OFRULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING

 

10

----

 

THE SECURITY FOR ITS OWNACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENTPURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANYDISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D) PURSUANT TOANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE ORTRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF ANOPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ITIN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THECOMPANY.  THE HOLDER OF THIS SECURITY BYITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOINGRESTRICTIONS.

 

THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS ANDWARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THISSECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.

 

THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS ANDWARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OROTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOMESECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR ANENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’SINVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIREOR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDERIS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABORPROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY ISNOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODEWITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BEDEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) ITIS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OFERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEEOR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANYOTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TOFINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN APROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OFTHE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVEEXEMPTION.

 

INCONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THEREGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BEREQUIRED BY THE

 

11

----

 

INDENTURE TO CONFIRM THATTHE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

THISSECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A PRINCIPALAMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESSTHEREOF.  ANY ATTEMPTED TRANSFER OF THISSECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BEDEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTEDTRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY FOR ANYPURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THISSECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTERESTWHATSOEVER IN THIS SECURITY.

 

THISOBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANYAGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCECORPORATION.  THIS OBLIGATION ISSUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE CLAIMS OF GENERAL AND SECUREDCREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANYOR ANY OF ITS SUBSIDIARIES AND IS NOT SECURED.

 

Section 2.06.                             Mutilated, Destroyed, Lost or Stolen DebtSecurities.

 

Incase any Debt Security shall become mutilated or be destroyed, lost or stolen,the Company shall execute, and upon its written request the Trustee shallauthenticate and deliver, a new Debt Security bearing a number notcontemporaneously outstanding, in exchange and substitution for the mutilatedDebt Security, or in lieu of and in substitution for the Debt Security sodestroyed, lost or stolen.  In every casethe applicant for a substituted Debt Security shall furnish to the Company andthe Trustee such security or indemnity as may be required by them to save eachof them harmless, and, in every case of destruction, loss or theft, theapplicant shall also furnish to the Company and the Trustee evidence to theirsatisfaction of the destruction, loss or theft of such Debt Security and of theownership thereof.

 

TheTrustee may authenticate any such substituted Debt Security and deliver thesame upon the written request or authorization of any officer of theCompany.  Upon the issuance of anysubstituted Debt Security, the Company may require the payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto and any other expenses connected therewith.  In case any Debt Security which has maturedor is about to mature or has been called for redemption in full shall becomemutilated or be destroyed, lost or stolen, the Company may, instead of issuinga substitute Debt Security, pay or authorize the payment of the same (withoutsurrender thereof except in the case of a mutilated Debt Security) if theapplicant for such payment shall furnish to the Company and the Trustee suchsecurity or indemnity as may be required by them to save each of them harmlessand, in case of destruction, loss or theft, evidence satisfactory to theCompany and to the Trustee of the destruction, loss or theft of such Securityand of the ownership thereof.

 

12

----

 

Everysubstituted Debt Security issued pursuant to the provisions of this Section 2.06by virtue of the fact that any such Debt Security is destroyed, lost or stolenshall constitute an additional contractual obligation of the Company, whetheror not the destroyed, lost or stolen Debt Security shall be found at any time,and shall be entitled to all the benefits of this Indenture equally andproportionately with any and all other Debt Securities duly issuedhereunder.  All Debt Securities shall beheld and owned upon the express condition that, to the extent permitted byapplicable law, the foregoing provisions are exclusive with respect to thereplacement or payment of mutilated, destroyed, lost or stolen Debt Securitiesand shall preclude any and all other rights or remedies notwithstanding any lawor statute existing or hereafter enacted to the contrary with respect to thereplacement or payment of negotiable instruments or other securities withouttheir surrender.

 

Section 2.07.                             Temporary Debt Securities.

 

Pendingthe preparation of definitive Debt Securities, the Company may execute and theTrustee shall authenticate and make available for delivery temporary DebtSecurities that are typed, printed or lithographed. Temporary Debt Securitiesshall be issuable in any authorized denomination, and substantially in the formof the definitive Debt Securities but with such omissions, insertions andvariations as may be appropriate for temporary Debt Securities, all as may bedetermined by the Company.  Every suchtemporary Debt Security shall be executed by the Company and be authenticated bythe Trustee upon the same conditions and in substantially the same manner, andwith the same effect, as the definitive Debt Securities.  Without unreasonable delay, the Company willexecute and deliver to the Trustee or the Authenticating Agent definitive DebtSecurities and thereupon any or all temporary Debt Securities may besurrendered in exchange therefor, at the Principal Office of the Trustee or atany office or agency maintained by the Company for such purpose as provided in Section 3.02,and the Trustee or the Authenticating Agent shall authenticate and makeavailable for delivery in exchange for such temporary Debt Securities a likeaggregate principal amount of such definitive Debt Securities.  Such exchange shall be made by the Company atits own expense and without any charge therefor except that in case of any suchexchange involving a registration of transfer the Company may require paymentof a sum sufficient to cover any tax, fee or other governmental charge that maybe imposed in relation thereto.  Until soexchanged, the temporary Debt Securities shall in all respects be entitled tothe same benefits under this Indenture as definitive Debt Securitiesauthenticated and delivered hereunder.

 

Section 2.08.                             Payment of Interest.

 

EachDebt Security will bear interest at the Interest Rate from and including eachInterest Payment Date or, in the case of the first interest period, theoriginal date of issuance of such Debt Security to, but excluding, the nextsucceeding Interest Payment Date or, in the case of the last interest period, theRedemption Date, Special Redemption Date or Maturity Date, as applicable (eachsuch period, an “Interest Period”), on the principal thereof, on any overdueprincipal and (to the extent that payment of such interest is enforceable underapplicable law) on Deferred Interest and on any overdue installment of interest(including Defaulted Interest), payable (subject to the provisions of Article XII)on each Interest Payment Date commencing on August 23, 2005, and on theRedemption Date, the Special Redemption Date or the Maturity Date, as the casemay be.  Interest and any DeferredInterest on any Debt Security that is

 

13

----

 

payable, and is punctuallypaid or duly provided for, on any Interest Payment Date shall be paid to thePerson in whose name such Debt Security (or one or more Predecessor Securities)is registered at the close of business on the regular record date for suchinterest installment, except that interest and any Deferred Interest payable onthe Maturity Date, the Redemption Date or the Special Redemption Date, as thecase may be, shall be paid to the Person to whom principal is paid.  In the event that any Debt Security orportion thereof is called for redemption and the redemption date is subsequentto a regular record date with respect to any Interest Payment Date and prior tosuch Interest Payment Date, interest on such Debt Security will be paid uponpresentation and surrender of such Debt Security.

 

Anyinterest on any Debt Security, other than Deferred Interest, that is payable,but is not punctually paid or duly provided for, on any Interest Payment Date(herein called “Defaulted Interest”) shall forthwith cease to be payable to theregistered holder on the relevant regular record date by virtue of having beensuch holder, and such Defaulted Interest shall be paid by the Company to thePersons in whose names such Debt Securities (or their respective PredecessorSecurities) are registered at the close of business on a special record datefor the payment of such Defaulted Interest, which shall be fixed in thefollowing manner:  the Company shallnotify the Trustee in writing of the amount of Defaulted Interest proposed tobe paid on each such Debt Security and the date of the proposed payment, and atthe same time the Company shall deposit with the Trustee an amount of moneyequal to the aggregate amount proposed to be paid in respect of such DefaultedInterest or shall make arrangements satisfactory to the Trustee for suchdeposit prior to the date of the proposed payment, such money when deposited tobe held in trust for the benefit of the Persons entitled to such DefaultedInterest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment ofsuch Defaulted Interest which shall not be more than fifteen nor less than tendays prior to the date of the proposed payment and not less than ten days afterthe receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Companyof such special record date and, in the name and at the expense of the Company,shall cause notice of the proposed payment of such Defaulted Interest and thespecial record date therefor to be mailed, first class postage prepaid, to eachSecurityholder at his or her address as it appears in the Debt SecurityRegister, not less than ten days prior to such special record date.  Notice of the proposed payment of suchDefaulted Interest and the special record date therefor having been mailed asaforesaid, such Defaulted Interest shall be paid to the Persons in whose namessuch Debt Securities (or their respective Predecessor Securities) areregistered on such special record date and thereafter the Company shall have nofurther payment obligation in respect of the Defaulted Interest.

 

Anyinterest scheduled to become payable on an Interest Payment Date occurringduring an Extension Period shall not be Defaulted Interest and shall be payableon such other date as may be specified in the terms of such Debt Securities.

 

Theterm “regular record date” as used in this Section shall mean thefifteenth day prior to the applicable Interest Payment Date whether or not suchdate is a Business Day.

 

Subjectto the foregoing provisions of this Section, each Debt Security delivered underthis Indenture upon registration of transfer of or in exchange for or in lieuof any other

 

14

----

 

Debt Security shall carrythe rights to interest accrued and unpaid, and to accrue, that were carried bysuch other Debt Security.

 

Section 2.09.                             Cancellation of Debt Securities Paid, etc.

 

AllDebt Securities surrendered for the purpose of payment, redemption, exchange orregistration of transfer, shall, if surrendered to the Company or any PayingAgent, be surrendered to the Trustee and promptly canceled by it, or, ifsurrendered to the Trustee or any Authenticating Agent, shall be promptlycanceled by it, and no Debt Securities shall be issued in lieu thereof exceptas expressly permitted by any of the provisions of this Indenture.  All Debt Securities canceled by anyAuthenticating Agent shall be delivered to the Trustee.  The Trustee shall destroy all canceled DebtSecurities unless the Company otherwise directs the Trustee in writing, inwhich case the Trustee shall dispose of such Debt Securities as directed by theCompany.  If the Company shall acquireany of the Debt Securities, however, such acquisition shall not operate as aredemption or satisfaction of the indebtedness represented by such DebtSecurities unless and until the same are surrendered to the Trustee forcancellation.

 

Section 2.10.                             Computation of Interest.

 

(a)                                  The amount of interest payable for anyInterest Period will be computed on the basis of a 360-day year and twelve 30-daymonths; provided, however, that upon the occurrence of a SpecialEvent redemption pursuant to Section 10.02 the amounts payable pursuant tothis Indenture shall be calculated as set forth in the definition of SpecialRedemption Price.

 

(b)                                 All percentages resulting from anycalculations on the Debt Securities will be rounded, if necessary, to thenearest one hundred-thousandth of a percentage point, with five one-millionthsof a percentage point rounded upward (e.g., 9.876545% (or .09876545) beingrounded to 9.87655% (or .0987655)), and all dollar amounts used in or resultingfrom such calculation will be rounded to the nearest cent (with one-half centbeing rounded upward).

 

Section 2.11.                             Extension of Interest Payment Period.

 

Solong as no Event of Default pursuant to Sections 5.01(b), (e) or (f) ofthis Indenture has occurred and is continuing, the Company shall have theright, from time to time and without causing an Event of Default, to deferpayments of interest on the Debt Securities by extending the interest paymentperiod on the Debt Securities at any time and from time to time during the termof the Debt Securities, for up to twenty consecutive quarterly periods (eachsuch extended interest payment period, an “Extension Period”).  No Extension Period may end on a date otherthan an Interest Payment Date.  Duringany Extension Period, interest will continue to accrue on the Debt Securities,and interest on such accrued interest (such accrued interest and interest thereonreferred to herein as “Deferred Interest”) will accrue, at the Interest Rate,compounded quarterly from the date such Deferred Interest would have beenpayable were it not for the Extension Period, both to the extent permitted bylaw.  No interest or Deferred Interest(except any Additional Interest that may be due and payable) shall be due andpayable during an Extension Period, except at the end thereof.  At the end of any such Extension Period theCompany shall pay all Deferred Interest then accrued and unpaid on the DebtSecurities;

 

15

----

 

provided, however, that no Extension Periodmay extend beyond the Maturity Date, Redemption Date or Special RedemptionDate; and providedfurther, however, that during any suchExtension Period, the Company shall be subject to the restrictions set forth inSection 3.08 of this Indenture. Prior to the termination of any Extension Period, the Company mayfurther extend such period, provided, that such period together with allsuch previous and further consecutive extensions thereof shall not exceedtwenty consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of allDeferred Interest, the Company may commence a new Extension Period, subject tothe foregoing requirements.  The Companymust give the Trustee notice of its election to begin such Extension Period atleast one Business Day prior to the date such interest is payable, but in anyevent not later than the related regular record date.  The Trustee shall give notice of the Company’selection to begin a new Extension Period to the Securityholders.

 

Section 2.12.                             CUSIP Numbers.

 

TheCompany in issuing the Debt Securities may use “CUSIP” numbers (if thengenerally in use), and, if so, the Trustee shall use “CUSIP” numbers in noticesof redemption as a convenience to Securityholders; provided, that anysuch notice may state that no representation is made as to the correctness ofsuch numbers either as printed on the Debt Securities or as contained in anynotice of a redemption and that reliance may be placed only on the otheridentification numbers printed on the Debt Securities, and any such redemptionshall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trusteein writing of any change in the CUSIP numbers.

 

16

----

 

ARTICLE III

 

PARTICULAR COVENANTS OF THE COMPANY

 

Section 3.01.                             Payment of Principal, Premium and Interest;Agreed Treatment of the Debt Securities.

 

(a)                                  The Company covenants and agrees that it willduly and punctually pay or cause to be paid all payments due on the DebtSecurities at the place, at the respective times and in the manner provided inthis Indenture and the Debt Securities. At the option of the Company, each installment of interest on the DebtSecurities may be paid (i) by mailing checks for such interest payable tothe order of the holders of Debt Securities entitled thereto as they appear onthe Debt Security Register or (ii) by wire transfer to any account with abanking institution located in the United States designated by such Person tothe Paying Agent no later than the related record date.

 

(b)                                 The Company will treat the Debt Securities asindebtedness, and the interest payable in respect of such Debt Securities asinterest, for all U.S. federal income tax purposes.  All payments in respect of such DebtSecurities will be made free and clear of U.S. withholding tax to anybeneficial owner thereof that has provided an Internal Revenue Service Form W-8BEN(or any substitute or successor form) establishing its non-U.S. status for U.S.federal income tax purposes.

 

(c)                                  As of the date of this Indenture, the Companyhas no intention to exercise its right under Section 2.11 to deferpayments of interest on the Debt Securities by commencing an Extension Period.

 

(d)                                 As of the date of this Indenture, the Companyrepresents that the likelihood that it would exercise its right under Section 2.11to defer payments of interest on the Debt Securities by commencing an ExtensionPeriod at any time during which the Debt Securities are outstanding is remotebecause of the restrictions that would be imposed on the Company’s ability todeclare or pay dividends or distributions on, or to redeem, purchase or make aliquidation payment with respect to, any of its outstanding equity and on theCompany’s ability to make any payments of principal of or premium, if any, orinterest on, or repurchase or redeem, any of its debt securities that rank *pari passu* in all respects with (or juniorin interest to) the Debt Securities.

 

Section 3.02.                             Offices for Notices and Payments, etc.

 

Solong as any of the Debt Securities remain outstanding, the Company willmaintain in Wilmington, Delaware or in Los Alamos, New Mexico an office oragency where the Debt Securities may be presented for payment, an office oragency where the Debt Securities may be presented for registration of transferand for exchange as provided in this Indenture and an office or agency wherenotices and demands to or upon the Company in respect of the Debt Securities orof this Indenture may be served.  TheCompany will give to the Trustee written notice of the location of any suchoffice or agency and of any change of location thereof.  Until otherwise designated from time to timeby the Company in a notice to the Trustee, or specified as

 

17

----

 

contemplated by Section 2.05,such office or agency for all of the above purposes shall be the PrincipalOffice of the Trustee.  In case theCompany shall fail to maintain any such office or agency in Wilmington,Delaware or in Los Alamos, New Mexico or shall fail to give such notice of thelocation or of any change in the location thereof, presentations and demandsmay be made and notices may be served at the Principal Office of the Trustee.

 

Inaddition to any such office or agency, the Company may from time to timedesignate one or more offices or agencies outside Wilmington, Delaware or LosAlamos, New Mexico where the Debt Securities may be presented for registrationof transfer and for exchange in the manner provided in this Indenture, and theCompany may from time to time rescind such designation, as the Company may deemdesirable or expedient; provided, however, that no suchdesignation or rescission shall in any manner relieve the Company of itsobligation to maintain any such office or agency in Wilmington, Delaware or inLos Alamos, New Mexico for the purposes above mentioned.  The Company will give to the Trustee promptwritten notice of any such designation or rescission thereof.

 

Section 3.03.                             Appointments to Fill Vacancies in Trustee’sOffice.

 

TheCompany, whenever necessary to avoid or fill a vacancy in the office ofTrustee, will appoint, in the manner provided in Section 6.09, a Trustee,so that there shall at all times be a Trustee hereunder.

 

Section 3.04.                             Provision as to Paying Agent.

 

(a)                                  If the Company shall appoint a Paying Agentother than the Trustee, it will cause such Paying Agent to execute and deliverto the Trustee an instrument in which such agent shall agree with the Trustee,subject to the provision of this Section 3.04,

 

(1)                                  that it will hold all sums held by it as suchagent for the payment of all payments due on the Debt Securities (whether suchsums have been paid to it by the Company or by any other obligor on the DebtSecurities) in trust for the benefit of the holders of the Debt Securities;

 

(2)                                  that it will give the Trustee prompt writtennotice of any failure by the Company (or by any other obligor on the DebtSecurities) to make any payment on the Debt Securities when the same shall bedue and payable; and

 

(3)                                  that it will, at any time during thecontinuance of any Event of Default, upon the written request of the Trustee,forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

(b)                                 If the Company shall act as its own PayingAgent, it will, on or before each due date of the payments due on the DebtSecurities, set aside, segregate and hold in trust for the benefit of theholders of the Debt Securities a sum sufficient to pay such principal, premiumor interest so becoming due and will notify the Trustee in writing of anyfailure to take such action and of any failure by the Company (or by any otherobligor under the Debt Securities) to make any payment on the Debt Securitieswhen the same shall become due and payable.

 

18

----

 

Wheneverthe Company shall have one or more Paying Agents for the Debt Securities, itwill, on or prior to each due date of the payments on the Debt Securities,deposit with a Paying Agent a sum sufficient to pay all payments so becomingdue, such sum to be held in trust for the benefit of the Persons entitledthereto and (unless such Paying Agent is the Trustee) the Company shallpromptly notify the Trustee in writing of its action or failure to act.

 

(c)                                  Anything in this Section 3.04 to thecontrary notwithstanding, the Company may, at any time, for the purpose ofobtaining a satisfaction and discharge with respect to the Debt Securities, orfor any other reason, pay, or direct any Paying Agent to pay to the Trustee allsums held in trust by the Company or any such Paying Agent, such sums to beheld by the Trustee upon the same terms and conditions herein contained.

 

(d)                                 Anything in this Section 3.04 to thecontrary notwithstanding, the agreement to hold sums in trust as provided inthis Section 3.04 is subject to Sections 12.03 and 12.04.

 

(e)                                  The Company hereby initially appoints theTrustee to act as Paying Agent.

 

Section 3.05.                             Certificate to Trustee.

 

TheCompany will deliver to the Trustee on or before 120 days after the end of eachfiscal year, so long as Debt Securities are outstanding hereunder, aCertificate, substantially in the form of Exhibit B attached hereto,stating that in the course of the performance by the signers of their duties asofficers of the Company they would normally have knowledge of any default bythe Company in the performance of any covenants contained herein, statingwhether or not they have knowledge of any such default and, if so, specifyingeach such default of which the signers have knowledge and the nature thereof.

 

Section 3.06.                             Additional Interest.

 

Ifand for so long as the Trust is the holder of all Debt Securities and issubject to, or otherwise required to pay, or is required to withhold fromdistributions to holders of Trust Securities, any additional taxes (includingwithholding taxes), duties, assessments or other governmental charges as aresult of a Tax Event, the Company will pay such additional amounts (the “AdditionalInterest”) on the Debt Securities as shall be required so that the net amountsreceived and retained by the Trust after paying taxes, duties, assessments orother governmental charges will be equal to the amounts the Trust would havereceived if no such taxes, duties, assessments or other governmental chargeshad been imposed.  Whenever in thisIndenture or the Debt Securities there is a reference in any context to thepayment of principal of or premium, if any, or interest on the Debt Securities,such mention shall be deemed to include mention of payments of the AdditionalInterest provided for in this paragraph to the extent that, in such context,Additional Interest is, was or would be payable in respect thereof pursuant tothe provisions of this paragraph and express mention of the payment ofAdditional Interest (if applicable) in any provisions hereof shall not beconstrued as excluding Additional Interest in those provisions hereof wheresuch express mention is not made, provided, however, that thedeferral of the payment of interest during an Extension Period pursuant to Section 2.11shall not defer the payment of any Additional Interest that may be due andpayable.

 

19

----

 

Section 3.07.                             Compliancewith Consolidation Provisions.

 

The Company will not, while any of the Debt Securitiesremain outstanding, consolidate with, or merge into any other Person, or mergeinto itself, or sell or convey all or substantially all of its property to anyother Person unless the provisions of Article XI hereof are complied with.

 

Section 3.08.                             Limitationon Dividends.

 

If (i) there shall have occurred and becontinuing a Default or an Event of Default, (ii) the Company shall be indefault with respect to its payment of any obligations under the CapitalSecurities Guarantee or (iii) the Company shall have given notice of itselection to defer payments of interest on the Debt Securities by extending theinterest payment period as provided herein and such period, or any extensionthereof, shall have commenced and be continuing, then the Company may not (A) declareor pay any dividends or distributions on, or redeem, purchase, acquire, or makea liquidation payment with respect to, any of the Company’s capital stock, (B) makeany payment of principal of or interest or premium, if any, on or repay,repurchase or redeem any debt securities of the Company that rank *pari passu* in**all respectswith or junior in interest to the Debt Securities or (C) make any paymentunder any guarantees of the Company that rank *paripassu*in all respects with or junior in interest to the CapitalSecurities Guarantee (other than (a) repurchases, redemptions or otheracquisitions of shares of capital stock of the Company (I) in connection withany employment contract, benefit plan or other similar arrangement with or forthe benefit of one or more employees, officers, directors or consultants, (II)in connection with a dividend reinvestment or stockholder stock purchase planor (III) in connection with the issuance of capital stock of the Company (orsecurities convertible into or exercisable for such capital stock) asconsideration in an acquisition transaction entered into prior to theoccurrence of (i), (ii) or (iii) above, (b) as a result of anyexchange or conversion of any class or series of the Company’s capital stock(or any capital stock of a subsidiary of the Company) for any class or seriesof the Company’s capital stock or of any class or series of the Company’s indebtednessfor any class or series of the Company’s capital stock, (c) the purchaseof fractional interests in shares of the Company’s capital stock pursuant tothe conversion or exchange provisions of such capital stock or the securitybeing converted or exchanged, (d) any declaration of a dividend inconnection with any stockholder’s rights plan, or the issuance of rights, stockor other property under any stockholder’s rights plan, or the redemption orrepurchase of rights pursuant thereto or (e) any dividend in the form ofstock, warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the samestock as that on which the dividend is being paid or ranks *pari passu*with or junior in interest tosuch stock).

 

Section 3.09.                             Covenantsas to the Trust.

 

For so long as such Trust Securities remainoutstanding, the Company shall maintain 100% ownership of the CommonSecurities; provided, however, that any permitted successor ofthe Company under this Indenture that is a U.S. Person may succeed to theCompany’s ownership of such Common Securities. The Company, as owner of the Common Securities, shall use commerciallyreasonable efforts to cause the Trust (a) to remain a statutory trust,except in connection with a distribution of Debt Securities to the holders ofTrust Securities

 

20

----

 

in liquidation of theTrust, the redemption of all of the Trust Securities or certain mergers, consolidationsor amalgamations, each as permitted by the Declaration, (b) to otherwisecontinue to be classified as a grantor trust for United States federal incometax purposes and (c) to cause each holder of Trust Securities to betreated as owning an undivided beneficial interest in the Debt Securities.

 

ARTICLE IVLISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

 

Section 4.01.                             Securityholders’Lists.

 

The Company covenants and agrees that it will furnishor cause to be furnished to the Trustee:

 

(a)                                  oneach regular record date for an Interest Payment Date, a list, in such form asthe Trustee may reasonably require, of the names and addresses of theSecurityholders of the Debt Securities as of such record date; and

 

(b)                                 atsuch other times as the Trustee may request in writing, within 30 days afterthe receipt by the Company of any such request, a list of similar form andcontent as of a date not more than 15 days prior to the time such list isfurnished;

 

except that no such lists need be furnished under thisSection 4.01 so long as the Trustee is in possession thereof by reason ofits acting as Debt Security registrar.

 

Section 4.02.                             Preservationand Disclosure of Lists.

 

(a)                                  TheTrustee shall preserve, in as current a form as is reasonably practicable, allinformation as to the names and addresses of the holders of Debt Securities (1) containedin the most recent list furnished to it as provided in Section 4.01 or (2) receivedby it in the capacity of Debt Securities registrar (if so acting)hereunder.  The Trustee may destroy anylist furnished to it as provided in Section 4.01 upon receipt of a newlist so furnished.

 

(b)                                 Incase three or more holders of Debt Securities (hereinafter referred to as “applicants”)apply in writing to the Trustee and furnish to the Trustee reasonable proofthat each such applicant has owned a Debt Security for a period of at least sixmonths preceding the date of such application, and such application states thatthe applicants desire to communicate with other holders of Debt Securities withrespect to their rights under this Indenture or under such Debt Securities andis accompanied by a copy of the form of proxy or other communication which suchapplicants propose to transmit, then the Trustee shall within five BusinessDays after the receipt of such application, at its election, either:

 

(1)                                  affordsuch applicants access to the information preserved at the time by the Trusteein accordance with the provisions of subsection (a) of this Section 4.02,or

 

21

----

 

(2)                                  informsuch applicants as to the approximate number of holders of Debt Securitieswhose names and addresses appear in the information preserved at the time bythe Trustee in accordance with the provisions of subsection (a) ofthis Section 4.02, and as to the approximate cost of mailing to suchSecurityholders the form of proxy or other communication, if any, specified insuch application.

 

If the Trusteeshall elect not to afford such applicants access to such information, theTrustee shall, upon the written request of such applicants, mail to eachSecurityholder of Debt Securities whose name and address appear in theinformation preserved at the time by the Trustee in accordance with theprovisions of subsection (a) of this Section 4.02 a copy of theform of proxy or other communication which is specified in such request withreasonable promptness after a tender to the Trustee of the material to bemailed and of payment, or provision for the payment, of the reasonable expensesof mailing, unless within five days after such tender, the Trustee shall mailto such applicants and file with the Securities and Exchange Commission, ifpermitted or required by applicable law, together with a copy of the materialto be mailed, a written statement to the effect that, in the opinion of theTrustee, such mailing would be contrary to the best interests of the holders ofall Debt Securities, as the case may be, or would be in violation of applicablelaw.  Such written statement shallspecify the basis of such opinion.  Ifsaid Commission, as permitted or required by applicable law, after opportunityfor a hearing upon the objections specified in the written statement so filed,shall enter an order refusing to sustain any of such objections or if, afterthe entry of an order sustaining one or more of such objections, saidCommission shall find, after notice and opportunity for hearing, that all theobjections so sustained have been met and shall enter an order so declaring,the Trustee shall mail copies of such material to all such Securityholders withreasonable promptness after the entry of such order and the renewal of suchtender; otherwise the Trustee shall be relieved of any obligation or duty tosuch applicants respecting their application.

 

(c)                                  Eachand every holder of Debt Securities, by receiving and holding the same, agreeswith the Company and the Trustee that neither the Company nor the Trustee norany Paying Agent shall be held accountable by reason of the disclosure of anysuch information as to the names and addresses of the holders of DebtSecurities in accordance with the provisions of subsection (b) ofthis Section 4.02, regardless of the source from which such informationwas derived, and that the Trustee shall not be held accountable by reason ofmailing any material pursuant to a request made under said subsection (b).

 

Section 4.03.                             Financialand Other Information.

 

(a)                                  TheCompany shall deliver to each holder of the Debt Securities and the CapitalSecurities (1) if the Company or any of its Subsidiaries is not then (x)subject to Section 13 or 15(d) of the Exchange Act or (y) exempt fromreporting pursuant to Rule 12g3-2(b) thereunder, the informationrequired by Rule 144A(d)(4) under the Securities Act, (2) if theCompany is not then required to file form FR Y-9C, the audited annual financialstatements (or, if no audited financial statements are prepared, the unauditedfinancial statements) of the Company and any Subsidiaries within 90 days afterthe end of the fiscal year, and (3) within 30 days after the end of thefiscal year of the Company, Form 1099 or such other annual U.S. federalincome tax information statement required by the Code, containing suchinformation with

 

22

----

 

regard to the DebtSecurities held by such holder as is required by the Code and the income taxregulations of the U.S. Treasury thereunder.

 

(b)                                 Ifand so long as the holder of the Capital Securities is an entity that holds apool of trust preferred securities, debt securities and/or similar securitiesor a trustee thereof, the Company will cause copies of its reports on Form FRY-9C to be delivered to the holder promptly following their filing with theFederal Reserve.

 

ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

 

Section 5.01.                             Eventsof Default.

 

The following events shall be “Events of Default” withrespect to Debt Securities:

 

(a)                                  theCompany defaults in the payment of any interest upon any Debt Security when itbecomes due and payable, and continuance of such default for a period of 30days; for the avoidance of doubt, an extension of any interest payment periodby the Company in accordance with Section 2.11 of this Indenture shall notconstitute a default under this clause 5.01(a); or

 

(b)                                 theCompany defaults in the payment of any interest upon any Debt Security,including any Additional Interest in respect thereof, following the nonpaymentof any such interest for twenty (20) or more consecutive quarterly interest paymentperiods; or

 

(c)                                  theCompany defaults in the payment of all or any part of the principal of (orpremium, if any, on) any Debt Securities as and when the same shall become dueand payable either at maturity, upon redemption, by declaration of accelerationor otherwise; or

 

(d)                                 theCompany defaults in the performance of, or breaches, any of its covenants oragreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (other than acovenant or agreement a default in whose performance or whose breach iselsewhere in this Section specifically dealt with), and continuance ofsuch default or breach for a period of 90 days after there has been given, byregistered or certified mail, to the Company by the Trustee or to the Companyand the Trustee by the holders of not less than 25% in aggregate principalamount of the outstanding Debt Securities, a written notice specifying suchdefault or breach and requiring it to be remedied and stating that such noticeis a “Notice of Default” hereunder; or

 

(e)                                  acourt having jurisdiction in the premises shall enter a decree or order forrelief in respect of the Company in an involuntary case under any applicablebankruptcy, insolvency or other similar law now or hereafter in effect, orappoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (orother similar official) of the Company or for any substantial part of itsproperty, or orders the winding-up or liquidation of its affairs and suchdecree or order shall remain unstayed and in effect for a period of 90consecutive days; or

 

23

----

 

(f)                                    theCompany shall commence a voluntary case under any applicable bankruptcy,insolvency or other similar law now or hereafter in effect, shall consent tothe entry of an order for relief in an involuntary case under any such law, orshall consent to the appointment of or taking possession by a receiver,liquidator, assignee, trustee, custodian, sequestrator (or other similarofficial) of the Company or of any substantial part of its property, or shallmake any general assignment for the benefit of creditors, or shall failgenerally to pay its debts as they become due; or

 

(g)                                 theTrust shall have voluntarily or involuntarily liquidated, dissolved, wound-upits business or otherwise terminated its existence except in connection with (1) thedistribution of the Debt Securities to holders of the Trust Securities inliquidation of their interests in the Trust, (2) the redemption of all ofthe outstanding Trust Securities or (3) certain mergers, consolidations oramalgamations, each as permitted by the Declaration.

 

If an Event of Default specified under clause (b) ofthis Section 5.01 occurs and is continuing with respect to the DebtSecurities, then, in each and every such case, either the Trustee or theholders of not less than 25% in aggregate principal amount of the DebtSecurities then outstanding hereunder, by notice in writing to the Company (andto the Trustee if given by Securityholders), may declare the entire principalof the Debt Securities and any premium and interest accrued, but unpaid,thereon to be due and payable immediately, and upon any such declaration thesame shall become immediately due and payable. If an Event of Default specified under clause (e) or (f) ofthis Section 5.01 occurs, then, in each and every such case, the entireprincipal amount of the Debt Securities and any premium and interest accrued,but unpaid, thereon shall ipso facto become immediately due and payable withoutfurther action.

 

The foregoing provisions, however, are subject to thecondition that if, at any time after the principal of the Debt Securities shallhave become due by acceleration, and before any judgment or decree for thepayment of the moneys due shall have been obtained or entered as hereinafterprovided, (i) the Company shall pay or shall deposit with the Trustee asum sufficient to pay all matured installments of interest upon all the DebtSecurities and all payments on the Debt Securities which shall have become dueotherwise than by acceleration (with interest upon all such payments andDeferred Interest, to the extent permitted by law) and such amount as shall besufficient to cover reasonable compensation to the Trustee and each predecessorTrustee, their respective agents, attorneys and counsel, and all other amountsdue to the Trustee pursuant to Section 6.06, if any, and (ii) allEvents of Default under this Indenture, other than the non-payment of thepayments on Debt Securities which shall have become due by acceleration, shallhave been cured, waived or otherwise remedied as provided herein, then and inevery such case the holders of a majority in aggregate principal amount of theDebt Securities then outstanding, by written notice to the Company and to theTrustee, may waive all defaults and rescind and annul such acceleration and itsconsequences, but no such waiver or rescission and annulment shall extend to orshall affect any subsequent default or shall impair any right consequentthereon.

 

In case the Trustee shall have proceeded to enforceany right under this Indenture and such proceedings shall have beendiscontinued or abandoned because of such rescission or annulment or for anyother reason or shall have been determined adversely to the Trustee, then andin every such case the Company, the Trustee and the holders of the DebtSecurities shall be

 

24

----

 

restored respectively totheir several positions and rights hereunder, and all rights, remedies andpowers of the Company, the Trustee and the holders of the Debt Securities shallcontinue as though no such proceeding had been taken.

 

Section 5.02.                             Paymentof Debt Securities on Default; Suit Therefor.

 

The Company covenants that upon the occurrence of anEvent of Default pursuant to clause (b) of Section 5.01 and upondemand of the Trustee, the Company will pay to the Trustee, for the benefit ofthe holders of the Debt Securities, the whole amount that then shall havebecome due and payable on all Debt Securities, including Deferred Interestaccrued on the Debt Securities; and, in addition thereto, such further amountas shall be sufficient to cover the costs and expenses of collection, includinga reasonable compensation to the Trustee, its agents, attorneys and counsel,and any other amounts due to the Trustee under Section 6.06.  In case the Company shall fail forthwith topay such amounts upon such demand, the Trustee, in its own name and as trusteeof an express trust, shall be entitled and empowered to institute any actionsor proceedings at law or in equity for the collection of the sums so due andunpaid, and may prosecute any such action or proceeding to judgment or finaldecree, and may enforce any such judgment or final decree against the Companyor any other obligor on such Debt Securities and collect in the manner providedby law out of the property of the Company or any other obligor on such DebtSecurities wherever situated the moneys adjudged or decreed to be payable.

 

In case there shall be pending proceedings for thebankruptcy or for the reorganization of the Company or any other obligor on theDebt Securities under Bankruptcy Law, or in case a receiver or trustee shallhave been appointed for the property of the Company or such other obligor, orin the case of any other similar judicial proceedings relative to the Companyor other obligor upon the Debt Securities, or to the creditors or property ofthe Company or such other obligor, the Trustee, irrespective of whether theprincipal of the Debt Securities shall then be due and payable as thereinexpressed or by acceleration or otherwise and irrespective of whether theTrustee shall have made any demand pursuant to the provisions of this Section 5.02,shall be entitled and empowered, by intervention in such proceedings orotherwise, to file and prove a claim or claims for the whole amount ofprincipal and interest owing and unpaid in respect of the Debt Securities and,in case of any judicial proceedings, to file such proofs of claim and otherpapers or documents as may be necessary or advisable in order to have theclaims of the Trustee (including any claim for reasonable compensation to theTrustee and each predecessor Trustee, and their respective agents, attorneysand counsel, and for reimbursement of all other amounts due to the Trusteeunder Section 6.06) and of the Securityholders allowed in such judicialproceedings relative to the Company or any other obligor on the DebtSecurities, or to the creditors or property of the Company or such other obligor,unless prohibited by applicable law and regulations, to vote on behalf of theholders of the Debt Securities in any election of a trustee or a standbytrustee in arrangement, reorganization, liquidation or other bankruptcy orinsolvency proceedings or Person performing similar functions in comparableproceedings, and to collect and receive any moneys or other property payable ordeliverable on any such claims, and to distribute the same after the deductionof its charges and expenses; and any receiver, assignee or trustee inbankruptcy or reorganization is hereby authorized by each of theSecurityholders to make such payments to the Trustee, and, in the event thatthe Trustee shall consent to the making of such payments directly to theSecurityholders, to pay to the Trustee such amounts as shall be sufficient tocover reasonable

 

25

----

 

compensation to theTrustee, each predecessor Trustee and their respective agents, attorneys andcounsel, and all other amounts due to the Trustee under Section 6.06.

 

Nothing herein contained shall be construed toauthorize the Trustee to authorize or consent to or accept or adopt on behalfof any Securityholder any plan of reorganization, arrangement, adjustment orcomposition affecting the Debt Securities or the rights of any holder thereofor to authorize the Trustee to vote in respect of the claim of anySecurityholder in any such proceeding.

 

All rights of action and of asserting claims underthis Indenture, or under any of the Debt Securities, may be enforced by theTrustee without the possession of any of the Debt Securities, or the productionthereof at any trial or other proceeding relative thereto, and any such suit orproceeding instituted by the Trustee shall be brought in its own name astrustee of an express trust, and any recovery of judgment shall be for theratable benefit of the holders of the Debt Securities.

 

In any proceedings brought by the Trustee (and alsoany proceedings involving the interpretation of any provision of this Indentureto which the Trustee shall be a party) the Trustee shall be held to representall the holders of the Debt Securities, and it shall not be necessary to makeany holders of the Debt Securities parties to any such proceedings.

 

Section 5.03.                             Applicationof Moneys Collected by Trustee.

 

Any moneys collected by the Trustee shall be appliedin the following order, at the date or dates fixed by the Trustee for thedistribution of such moneys, upon presentation of the several Debt Securitiesin respect of which moneys have been collected, and stamping thereon thepayment, if only partially paid, and upon surrender thereof if fully paid:

 

First:  To thepayment of costs and expenses incurred by, and reasonable fees of, the Trustee,its agents, attorneys and counsel, and of all other amounts due to the Trusteeunder Section 6.06;

 

Second:  To thepayment of all Senior Indebtedness of the Company if and to the extent requiredby Article XV;

 

Third:  To thepayment of the amounts then due and unpaid upon Debt Securities, in respect ofwhich or for the benefit of which money has been collected, ratably, withoutpreference or priority of any kind, according to the amounts due on such DebtSecurities; and

 

Fourth:  Thebalance, if any, to the Company.

 

Section 5.04.                             Proceedingsby Securityholders.

 

No holder of any Debt Security shall have any right toinstitute any suit, action or proceeding for any remedy hereunder, unless suchholder previously shall have given to the Trustee written notice of an Event ofDefault with respect to the Debt Securities and unless the holders of not lessthan 25% in aggregate principal amount of the Debt Securities then outstandingshall have given the Trustee a written request to institute such action, suitor

 

26

----

 

proceeding and shall haveoffered to the Trustee such reasonable indemnity as it may require against thecosts, expenses and liabilities to be incurred thereby, and the Trustee for 60days after its receipt of such notice, request and offer of indemnity shallhave failed to institute any such action, suit or proceeding; provided,that no holder of Debt Securities shall have any right to prejudice the rightsof any other holder of Debt Securities, obtain priority or preference over anyother such holder or enforce any right under this Indenture except in themanner herein provided and for the equal, ratable and common benefit of allholders of Debt Securities.

 

Notwithstanding any other provisions in this Indenture,however, the right of any holder of any Debt Security to receive payment of theprincipal of, premium, if any, and interest on such Debt Security when due, orto institute suit for the enforcement of any such payment, shall not beimpaired or affected without the consent of such holder.  For the protection and enforcement of theprovisions of this Section, each and every Securityholder and the Trustee shallbe entitled to such relief as can be given either at law or in equity.

 

Section 5.05.                             Proceedingsby Trustee.

 

In case of an Event of Default hereunder the Trusteemay in its discretion proceed to protect and enforce the rights vested in it bythis Indenture by such appropriate judicial proceedings as the Trustee shalldeem most effectual to protect and enforce any of such rights, either by suitin equity or by action at law or by proceeding in bankruptcy or otherwise,whether for the specific enforcement of any covenant or agreement contained inthis Indenture or in aid of the exercise of any power granted in thisIndenture, or to enforce any other legal or equitable right vested in theTrustee by this Indenture or by law.

 

Section 5.06.                             RemediesCumulative and Continuing.

 

Except as otherwise provided in Section 2.06, allpowers and remedies given by this Article V to the Trustee or to theSecurityholders shall, to the extent permitted by law, be deemed cumulative andnot exclusive of any other powers and remedies available to the Trustee or theholders of the Debt Securities, by judicial proceedings or otherwise, toenforce the performance or observance of the covenants and agreements containedin this Indenture or otherwise established with respect to the Debt Securities,and no delay or omission of the Trustee or of any holder of any of the Debt Securitiesto exercise any right or power accruing upon any Event of Default occurring andcontinuing as aforesaid shall impair any such right or power, or shall beconstrued to be a waiver of any such default or an acquiescence therein; and,subject to the provisions of Section 5.04, every power and remedy given bythis Article V or by law to the Trustee or to the Securityholders may beexercised from time to time, and as often as shall be deemed expedient, by theTrustee or by the Securityholders.

 

Section 5.07.                             Directionof Proceedings and Waiver of Defaults by Majority of Securityholders.

 

The holders of a majority in aggregate principalamount of the Debt Securities affected (voting as one class) at the timeoutstanding shall have the right to direct the time, method and place ofconducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred on the Trustee with respect to suchDebt Securities;

 

27

----

 

provided,however, that (subject to the provisions of Section 6.01) theTrustee shall have the right to decline to follow any such direction if theTrustee shall determine that the action so directed would be unjustlyprejudicial to the holders not taking part in such direction or if the Trusteebeing advised by counsel determines that the action or proceeding so directedmay not lawfully be taken or if a Responsible Officer of the Trustee shalldetermine that the action or proceedings so directed would involve the Trusteein personal liability.  Prior to anydeclaration of acceleration, or ipso facto acceleration, of the maturity of theDebt Securities, the holders of a majority in aggregate principal amount of theDebt Securities at the time outstanding may on behalf of the holders of all ofthe Debt Securities waive (or modify any previously granted waiver of) any pastDefault or Event of Default and its consequences, except a default (a) inthe payment of principal of, premium, if any, or interest on any of the DebtSecurities, (b) in respect of covenants or provisions hereof which cannotbe modified or amended without the consent of the holder of each Debt Securityaffected, or (c)  in respect of the covenants contained in Section 3.09;provided, however, that if the Debt Securities are held by theTrust or a trustee of the Trust, such waiver or modification to such waivershall not be effective until the holders of a majority in liquidationpreference of the Trust Securities of the Trust shall have consented to such waiveror modification to such waiver; provided, further, that if theconsent of the holder of each outstanding Debt Security is required, suchwaiver shall not be effective until each holder of the Trust Securities of theTrust shall have consented to such waiver. Upon any such waiver, the Default or Event of Default covered therebyshall be deemed to be cured for all purposes of this Indenture and the Company,the Trustee and the holders of the Debt Securities shall be restored to theirformer positions and rights hereunder, respectively; but no such waiver shallextend to any subsequent or other Default or Event of Default or impair anyright consequent thereon.  Whenever anyDefault or Event of Default hereunder shall have been waived as permitted bythis Section 5.07, said Default or Event of Default shall for all purposesof the Debt Securities and this Indenture be deemed to have been cured and tobe not continuing.

 

Section 5.08.                             Noticeof Defaults.

 

The Trustee shall, within 90 days after a ResponsibleOfficer of the Trustee shall have actual knowledge or received written noticeof the occurrence of a default with respect to the Debt Securities, mail to allSecurityholders, as the names and addresses of such holders appear upon theDebt Security Register, notice of all defaults with respect to the DebtSecurities known to the Trustee, unless such defaults shall have been curedbefore the giving of such notice (the term “defaults” for the purpose of this Section 5.08being hereby defined to be any event specified in Section 5.01, notincluding periods of grace, if any, provided for therein); provided,that, except in the case of default in the payment of the principal of,premium, if any, or interest on any of the Debt Securities, the Trustee shallbe protected in withholding such notice if and so long as a Responsible Officerof the Trustee in good faith determines that the withholding of such notice isin the interests of the Securityholders.

 

Section 5.09.                             Undertakingto Pay Costs.

 

All parties to this Indenture agree, and each holderof any Debt Security by such holder’s acceptance thereof shall be deemed tohave agreed, that any court may in its discretion require, in any suit for theenforcement of any right or remedy under this Indenture, or in any suit againstthe Trustee for any action taken or omitted by it as Trustee, the filing by anyparty

 

28

----

 

litigant in such suit ofan undertaking to pay the costs of such suit, and that such court may in itsdiscretion assess reasonable costs, including reasonable attorneys’ fees andexpenses, against any party litigant in such suit, having due regard to themerits and good faith of the claims or defenses made by such party litigant;but the provisions of this Section 5.09 shall not apply to any suitinstituted by the Trustee, to any suit instituted by any Securityholder, orgroup of Securityholders, holding in the aggregate more than 10% in principalamount of the Debt Securities outstanding, or to any suit instituted by anySecurityholder for the enforcement of the payment of the principal of (orpremium, if any) or interest on any Debt Security against the Company on orafter the same shall have become due and payable.

 

ARTICLE VICONCERNING THE TRUSTEE

 

Section 6.01.                             Dutiesand Responsibilities of Trustee.

 

With respect to the holders of Debt Securities issuedhereunder, the Trustee, prior to the occurrence of an Event of Default withrespect to the Debt Securities and after the curing or waiving of all Events ofDefault which may have occurred, with respect to the Debt Securities,undertakes to perform such duties and only such duties as are specifically setforth in this Indenture.  In case anEvent of Default with respect to the Debt Securities has occurred (which hasnot been cured or waived) the Trustee shall exercise such of the rights andpowers vested in it by this Indenture, and use the same degree of care andskill in their exercise, as a prudent person would exercise or use under thecircumstances in the conduct of such person’s own affairs.

 

No provision of this Indenture shall be construed torelieve the Trustee from liability for its own negligent action, its ownnegligent failure to act or its own willful misconduct, except that:

 

(a)                                  priorto the occurrence of an Event of Default with respect to the Debt Securitiesand after the curing or waiving of all Events of Default which may haveoccurred

 

(1)                                  theduties and obligations of the Trustee with respect to the Debt Securities shallbe determined solely by the express provisions of this Indenture, and theTrustee shall not be liable except for the performance of such duties andobligations with respect to the Debt Securities as are specifically set forthin this Indenture, and no implied covenants or obligations shall be read intothis Indenture against the Trustee; and

 

(2)                                  inthe absence of bad faith on the part of the Trustee, the Trustee mayconclusively rely, as to the truth of the statements and the correctness of theopinions expressed therein, upon any certificates or opinions furnished to theTrustee and conforming to the requirements of this Indenture; but, in the caseof any such certificates or opinions which by any provision hereof arespecifically required to be furnished to the Trustee, the Trustee shall beunder a duty to examine the same to determine whether or not they conform ontheir face to the requirements of this Indenture;

 

29

----

 

(b)                                 theTrustee shall not be liable for any error of judgment made in good faith by aResponsible Officer or Officers of the Trustee, unless it shall be proved thatthe Trustee was negligent in ascertaining the pertinent facts;

 

(c)                                  theTrustee shall not be liable with respect to any action taken or omitted to betaken by it in good faith, in accordance with the direction of theSecurityholders pursuant to Section 5.07, relating to the time, method andplace of conducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred upon the Trustee, under this Indenture;and

 

(d)                                 theTrustee shall not be charged with knowledge of any Default or Event of Defaultwith respect to the Debt Securities unless either (1) a ResponsibleOfficer shall have actual knowledge of such Default or Event of Default or (2) writtennotice of such Default or Event of Default shall have been given to the Trusteeby the Company or any other obligor on the Debt Securities or by any holder ofthe Debt Securities, except with respect to an Event of Default pursuant toSections 5.01(a), 5.01(b) or 5.01(c) hereof (other than an Event ofDefault resulting from the default in the payment of Additional Interest orpremium, if any, if the Trustee does not have actual knowledge or writtennotice that such payment is due and payable), of which the Trustee shall bedeemed to have knowledge.

 

None of the provisions contained in this Indentureshall require the Trustee to expend or risk its own funds or otherwise incurpersonal financial liability in the performance of any of its duties or in theexercise of any of its rights or powers.

 

Section 6.02.                             Relianceon Documents, Opinions, etc.

 

Except as otherwise provided in Section 6.01:

 

(a)                                  theTrustee may conclusively rely and shall be fully protected in acting or refrainingfrom acting upon any resolution, certificate, statement, instrument, opinion,report, notice, request, consent, order, bond, note, debenture or other paperor document believed by it in good faith to be genuine and to have been signedor presented by the proper party or parties;

 

(b)                                 anyrequest, direction, order or demand of the Company mentioned herein shall besufficiently evidenced by an Officers’ Certificate (unless other evidence inrespect thereof be herein specifically prescribed); and any Board Resolutionmay be evidenced to the Trustee by a copy thereof certified by the Secretary oran Assistant Secretary of the Company;

 

(c)                                  theTrustee may consult with counsel of its selection and any advice or Opinion ofCounsel shall be full and complete authorization and protection in respect ofany action taken, suffered or omitted by it hereunder in good faith and inaccordance with such advice or Opinion of Counsel;

 

(d)                                 theTrustee shall be under no obligation to exercise any of the rights or powersvested in it by this Indenture at the request, order or direction of any of theSecurityholders, pursuant to the provisions of this Indenture, unless suchSecurityholders shall have offered to the Trustee reasonable security orindemnity against the costs, expenses and liabilities which may be incurredtherein or thereby;

 

30

----

 

(e)                                  theTrustee shall not be liable for any action taken or omitted by it in good faithand believed by it to be authorized or within the discretion or rights orpowers conferred upon it by this Indenture; nothing contained herein shall,however, relieve the Trustee of the obligation, upon the occurrence of an Eventof Default with respect to the Debt Securities (that has not been cured orwaived) to exercise with respect to the Debt Securities such of the rights andpowers vested in it by this Indenture, and to use the same degree of care andskill in their exercise, as a prudent person would exercise or use under thecircumstances in the conduct of such person’s own affairs;

 

(f)                                    theTrustee shall not be bound to make any investigation into the facts or mattersstated in any resolution, certificate, statement, instrument, opinion, report,notice, request, consent, order, approval, bond, debenture, coupon or otherpaper or document, unless requested in writing to do so by the holders of notless than a majority in principal amount of the outstanding Debt Securitiesaffected thereby; provided, however, that if the payment within areasonable time to the Trustee of the costs, expenses or liabilities likely tobe incurred by it in the making of such investigation is, in the opinion of theTrustee, not reasonably assured to the Trustee by the security afforded to itby the terms of this Indenture, the Trustee may require reasonable indemnityagainst such expense or liability as a condition to so proceeding; and

 

(g)                                 theTrustee may execute any of the trusts or powers hereunder or perform any dutieshereunder either directly or by or through agents (including any AuthenticatingAgent) or attorneys, and the Trustee shall not be responsible for anymisconduct or negligence on the part of any such agent or attorney appointed byit with due care.

 

Section 6.03.                             NoResponsibility for Recitals, etc.

 

The recitals contained herein and in the DebtSecurities (except in the certificate of authentication of the Trustee or theAuthenticating Agent) shall be taken as the statements of the Company and theTrustee and the Authenticating Agent assume no responsibility for thecorrectness of the same.  The Trustee andthe Authenticating Agent make no representations as to the validity orsufficiency of this Indenture or of the Debt Securities.  The Trustee and the Authenticating Agentshall not be accountable for the use or application by the Company of any DebtSecurities or the proceeds of any Debt Securities authenticated and deliveredby the Trustee or the Authenticating Agent in conformity with the provisions ofthis Indenture.

 

Section 6.04.                             Trustee,Authenticating Agent, Paying Agents, Transfer Agents or Registrar May OwnDebt Securities.

 

The Trustee or any Authenticating Agent or any PayingAgent or any transfer agent or any Debt Security registrar, in its individualor any other capacity, may become the owner or pledgee of Debt Securities withthe same rights it would have if it were not Trustee, Authenticating Agent,Paying Agent, transfer agent or Debt Security registrar.

 

Section 6.05.                             Moneysto be Held in Trust.

 

Subject to the provisions of Section 12.04, allmoneys received by the Trustee or any paying agent shall, until used or appliedas herein provided, be held in trust for the purpose for which they werereceived, but need not be segregated from other funds except to the extent

 

31

----

 

required by law.  The Trustee and any Paying Agent shall beunder no liability for interest on any money received by it hereunder except asotherwise agreed in writing with the Company. So long as no Event of Default shall have occurred and be continuing,all interest allowed on any such moneys, if any, shall be paid from time totime to the Company upon the written order of the Company, signed by theChairman of the Board of Directors, the President, the Chief Operating Officer,a Vice President, the Treasurer or an Assistant Treasurer of the Company.

 

Section 6.06.                             Compensationand Expenses of Trustee.

 

The Company covenants and agrees to pay to the Trusteefrom time to time, and the Trustee shall be entitled to, such compensation asshall be agreed to in writing between the Company and the Trustee (which shallnot be limited by any provision of law in regard to the compensation of atrustee of an express trust), and the Company will pay or reimburse the Trusteeupon its written request for all documented reasonable expenses, disbursementsand advances incurred or made by the Trustee in accordance with any of theprovisions of this Indenture (including the reasonable compensation and thereasonable expenses and disbursements of its counsel and of all Persons notregularly in its employ) except any such expense, disbursement or advance thatarises from its negligence or bad faith. The Company also covenants to indemnify each of the Trustee (includingin its individual capacity) and any predecessor Trustee (and its officers,agents, directors and employees) for, and to hold it harmless against, any andall loss, damage, claim, liability or expense including taxes (other than taxesbased on the income of the Trustee), except to the extent such loss, damage,claim, liability or expense results from the negligence or bad faith of suchindemnitee, arising out of or in connection with the acceptance oradministration of this trust, including the costs and expenses of defending itselfagainst any claim or liability in the premises. The obligations of the Company under this Section 6.06 tocompensate and indemnify the Trustee and to pay or reimburse the Trustee fordocumented expenses, disbursements and advances shall constitute additionalindebtedness hereunder.  Such additionalindebtedness shall be secured by a lien prior to that of the Debt Securitiesupon all property and funds held or collected by the Trustee as such, exceptfunds held in trust for the benefit of the holders of particular DebtSecurities.

 

Without prejudice to any other rights available to theTrustee under applicable law, when the Trustee incurs expenses or rendersservices in connection with an Event of Default specified in subsections (e), (f) or(g) of Section 5.01, the expenses (including the reasonable chargesand expenses of its counsel) and the compensation for the services are intendedto constitute expenses of administration under any applicable federal or statebankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive theresignation or removal of the Trustee and the defeasance or other terminationof this Indenture.

 

Notwithstanding anything in this Indenture or any DebtSecurity to the contrary, the Trustee shall have no obligation whatsoever toadvance funds to pay any principal of or interest on or other amounts withrespect to the Debt Securities or otherwise advance funds to or on behalf ofthe Company.

 

32

----

 

Section 6.07.                             Officers’Certificate as Evidence.

 

Except as otherwise provided in Sections 6.01 and6.02, whenever in the administration of the provisions of this Indenture theTrustee shall deem it necessary or desirable that a matter be proved orestablished prior to taking or omitting any action hereunder, such matter(unless other evidence in respect thereof be herein specifically prescribed)may, in the absence of negligence or bad faith on the part of the Trustee, bedeemed to be conclusively proved and established by an Officers’ Certificatedelivered to the Trustee, and such certificate, in the absence of negligence orbad faith on the part of the Trustee, shall be full warrant to the Trustee forany action taken or omitted by it under the provisions of this Indenture uponthe faith thereof.

 

Section 6.08.                             Eligibilityof Trustee.

 

The Trustee hereunder shall at all times be a U.S.Person that is a banking corporation or national association organized anddoing business under the laws of the United States of America or any statethereof or of the District of Columbia and authorized under such laws toexercise corporate trust powers, having a combined capital and surplus of atleast fifty million U.S. dollars ($50,000,000) and subject to supervision orexamination by federal, state, or District of Columbia authority.  If such corporation or national associationpublishes reports of condition at least annually, pursuant to law or to therequirements of the aforesaid supervising or examining authority, then for thepurposes of this Section 6.08 the combined capital and surplus of suchcorporation or national association shall be deemed to be its combined capitaland surplus as set forth in its most recent records of condition so published.

 

The Company may not, nor may any Person directly orindirectly controlling, controlled by, or under common control with theCompany, serve as Trustee, notwithstanding that such corporation or nationalassociation shall be otherwise eligible and qualified under this Article.

 

In case at any time the Trustee shall cease to beeligible in accordance with the provisions of this Section 6.08, theTrustee shall resign immediately in the manner and with the effect specified inSection 6.09.

 

If the Trustee has or shall acquire any “conflictinginterest” within the meaning of § 310(b) of the Trust Indenture Act,the Trustee shall either eliminate such interest or resign, to the extent andin the manner provided by, and subject to this Indenture.

 

Section 6.09.                             Resignationor Removal of Trustee.

 

(a)                                  TheTrustee, or any trustee or trustees hereafter appointed, may at any time resignby giving written notice of such resignation to the Company and by mailingnotice thereof, at the Company’s expense, to the holders of the Debt Securitiesat their addresses as they shall appear on the Debt Security Register.  Upon receiving such notice of resignation,the Company shall promptly appoint a successor trustee or trustees by writteninstrument, in duplicate, executed by order of its Board of Directors, one copyof which instrument shall be delivered to the resigning Trustee and one copy tothe successor Trustee.  If no successorTrustee shall have been so appointed and have accepted appointment within 30days after the mailing of such notice of resignation to the affectedSecurityholders, the resigning Trustee may petition any

 

33

----

 

court of competentjurisdiction for the appointment of a successor Trustee, or any Securityholderwho has been a bona fide holder of a Debt Security or Debt Securities for atleast six months may, subject to the provisions of Section 5.09, on behalfof himself or herself and all others similarly situated, petition any suchcourt for the appointment of a successor Trustee.  Such court may thereupon, after such notice,if any, as it may deem proper and prescribe, appoint a successor Trustee.

 

(b)                                 Incase at any time any of the following shall occur —

 

(1)                                  theTrustee shall fail to comply with the provisions of the last paragraph of Section 6.08after written request therefor by the Company or by any Securityholder who hasbeen a bona fide holder of a Debt Security or Debt Securities for at least sixmonths,

 

(2)                                  theTrustee shall cease to be eligible in accordance with the provisions of Section 6.08and shall fail to resign after written request therefor by the Company or byany such Securityholder, or

 

(3)                                  theTrustee shall become incapable of acting, or shall be adjudged bankrupt orinsolvent, or a receiver of the Trustee or of its property shall be appointed,or any public officer shall take charge or control of the Trustee or of itsproperty or affairs for the purpose of rehabilitation, conservation orliquidation,

 

then, in any such case,the Company may remove the Trustee and appoint a successor Trustee by writteninstrument, in duplicate, executed by order of the Board of Directors, one copyof which instrument shall be delivered to the Trustee so removed and one copyto the successor Trustee, or, subject to the provisions of Section 5.09,if no successor Trustee shall have been so appointed and have acceptedappointment within 30 days of the occurrence of any of (1),(2) or (3) above,any Securityholder who has been a bona fide holder of a Debt Security or DebtSecurities for at least six months may, on behalf of himself or herself and allothers similarly situated, petition any court of competent jurisdiction for theremoval of the Trustee and the appointment of a successor Trustee.  Such court may thereupon, after such notice,if any, as it may deem proper and prescribe, remove the Trustee and appoint asuccessor Trustee.

 

(c)                                  Uponprior written notice to the Company and the Trustee, the holders of a majorityin aggregate principal amount of the Debt Securities at the time outstanding mayat any time remove the Trustee and nominate a successor Trustee, which shall bedeemed appointed as successor Trustee unless within ten Business Days aftersuch nomination the Company objects thereto, in which case or in the case of afailure by such holders to nominate a successor Trustee, the Trustee so removedor any Securityholder, upon the terms and conditions and otherwise as in subsection (a) ofthis Section 6.09 provided, may petition any court of competentjurisdiction for an appointment of a successor.

 

(d)                                 Anyresignation or removal of the Trustee and appointment of a successor Trusteepursuant to any of the provisions of this Section 6.09 shall becomeeffective upon acceptance of appointment by the successor Trustee as providedin Section 6.10.

 

34

----

 

Section 6.10.                             Acceptanceby Successor Trustee.

 

Any successor Trustee appointed as provided in Section 6.09shall execute, acknowledge and deliver to the Company and to its predecessorTrustee an instrument accepting such appointment hereunder, and thereupon theresignation or removal of the retiring Trustee shall become effective and suchsuccessor Trustee, without any further act, deed or conveyance, shall becomevested with all the rights, powers, duties and obligations with respect to theDebt Securities of its predecessor hereunder, with like effect as if originallynamed as Trustee herein; but, nevertheless, on the written request of theCompany or of the successor Trustee, the Trustee ceasing to act shall, uponpayment of the amounts then due it pursuant to the provisions of Section 6.06,execute and deliver an instrument transferring to such successor Trustee allthe rights and powers of the Trustee so ceasing to act and shall duly assign,transfer and deliver to such successor Trustee all property and money held bysuch retiring Trustee hereunder.  Uponrequest of any such successor Trustee, the Company shall execute any and allinstruments in writing for more fully and certainly vesting in and confirmingto such successor Trustee all such rights and powers.  Any Trustee ceasing to act shall,nevertheless, retain a lien upon all property or funds held or collected bysuch Trustee to secure any amounts then due it pursuant to the provisions of Section 6.06.

 

If a successor Trustee is appointed, the Company, theretiring Trustee and the successor Trustee shall execute and deliver anindenture supplemental hereto which shall contain such provisions as shall bedeemed necessary or desirable to confirm that all the rights, powers, trustsand duties of the retiring Trustee with respect to the Debt Securities as towhich the predecessor Trustee is not retiring shall continue to be vested inthe predecessor Trustee, and shall add to or change any of the provisions ofthis Indenture as shall be necessary to provide for or facilitate theadministration of the Trust hereunder by more than one Trustee, it beingunderstood that nothing herein or in such supplemental indenture shallconstitute such Trustees co-trustees of the same trust and that each suchTrustee shall be Trustee of a trust or trusts hereunder separate and apart fromany trust or trusts hereunder administered by any other such Trustee.

 

No successor Trustee shall accept appointment asprovided in this Section 6.10 unless at the time of such acceptance suchsuccessor Trustee shall be eligible under the provisions of Section 6.08.

 

In no event shall a retiring Trustee be liable for theacts or omissions of any successor Trustee hereunder.

 

Upon acceptance of appointment by a successor Trusteeas provided in this Section 6.10, the Company shall mail notice of thesuccession of such Trustee hereunder to the holders of Debt Securities at theiraddresses as they shall appear on the Debt Security Register.  If the Company fails to mail such noticewithin ten Business Days after the acceptance of appointment by the successorTrustee, the successor Trustee shall cause such notice to be mailed at theexpense of the Company.

 

Section 6.11.                             Successionby Merger, etc.

 

Any corporation into which the Trustee may be mergedor converted or with which it may be consolidated, or any corporation resultingfrom any merger, conversion or

 

35

----

 

consolidation to whichthe Trustee shall be a party, or any corporation succeeding to all orsubstantially all of the corporate trust business of the Trustee, shall be thesuccessor of the Trustee hereunder without the execution or filing of any paperor any further act on the part of any of the parties hereto; provided,that such corporation shall be otherwise eligible and qualified under thisArticle.

 

In case at the time such successor to the Trusteeshall succeed to the trusts created by this Indenture any of the DebtSecurities shall have been authenticated but not delivered, any such successorto the Trustee may adopt the certificate of authentication of any predecessorTrustee, and deliver such Debt Securities so authenticated; and in case at thattime any of the Debt Securities shall not have been authenticated, anysuccessor to the Trustee may authenticate such Debt Securities either in thename of any predecessor hereunder or in the name of the successor Trustee; andin all such cases such certificates shall have the full force which it isanywhere in the Debt Securities or in this Indenture provided that thecertificate of the Trustee shall have; provided, however, thatthe right to adopt the certificate of authentication of any predecessor Trusteeor authenticate Debt Securities in the name of any predecessor Trustee shallapply only to its successor or successors by merger, conversion orconsolidation.

 

Section 6.12.                             AuthenticatingAgents.

 

There may be one or more Authenticating Agentsappointed by the Trustee upon the request of the Company with power to act onits behalf and subject to its direction in the authentication and delivery ofDebt Securities issued upon exchange or registration of transfer thereof asfully to all intents and purposes as though any such Authenticating Agent hadbeen expressly authorized to authenticate and deliver Debt Securities; provided,that the Trustee shall have no liability to the Company for any acts oromissions of the Authenticating Agent with respect to the authentication anddelivery of Debt Securities.  Any suchAuthenticating Agent shall at all times be a banking corporation or nationalassociation organized and doing business under the laws of the United States orof any state or territory thereof or of the District of Columbia authorized undersuch laws to act as Authenticating Agent, having a combined capital and surplusof at least $50,000,000 and being subject to supervision or examination byfederal, state, territorial or District of Columbia authority.  If such banking corporation or nationalassociation publishes reports of condition at least annually pursuant to law orthe requirements of such authority, then for the purposes of this Section 6.12the combined capital and surplus of such corporation shall be deemed to be itscombined capital and surplus as set forth in its most recent report ofcondition so published.  If at any timean Authenticating Agent shall cease to be eligible in accordance with theprovisions of this Section, it shall resign immediately in the manner and withthe effect herein specified in this Section.

 

Any corporation into which any Authenticating Agentmay be merged or converted or with which it may be consolidated, or anycorporation resulting from any merger, consolidation or conversion to which anyAuthenticating Agent shall be a party, or any corporation succeeding to all orsubstantially all of the corporate trust business of any Authenticating Agent,shall be the successor of such Authenticating Agent hereunder, if suchsuccessor corporation is otherwise eligible under this Section 6.12without the execution or filing of any paper or any further act on the part ofthe parties hereto or such Authenticating Agent.

 

36

----

 

Any Authenticating Agent may at any time resign bygiving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate theagency of any Authenticating Agent with respect to the Debt Securities bygiving written notice of termination to such Authenticating Agent and to theCompany.  Upon receiving such a notice ofresignation or upon such a termination, or in case at any time anyAuthenticating Agent shall cease to be eligible under this Section 6.12,the Trustee may, and upon the request of the Company shall, promptly appoint asuccessor Authenticating Agent eligible under this Section 6.12, shallgive written notice of such appointment to the Company and shall mail notice ofsuch appointment to all holders of Debt Securities as the names and addressesof such holders appear on the Debt Security Register.  Any successor Authenticating Agent uponacceptance of its appointment hereunder shall become vested with all rights,powers, duties and responsibilities with respect to the Debt Securities of itspredecessor hereunder, with like effect as if originally named asAuthenticating Agent herein.

 

The Company agrees to pay to any Authenticating Agentfrom time to time reasonable compensation for its services.  Any Authenticating Agent shall have noresponsibility or liability for any action taken by it as such in accordancewith the directions of the Trustee.

 

ARTICLE VIICONCERNING THE SECURITYHOLDERS

 

Section 7.01.                             Actionby Securityholders.

 

Whenever in this Indenture it is provided that theholders of a specified percentage in aggregate principal amount of the DebtSecurities may take any action (including the making of any demand or request,the giving of any notice, consent or waiver or the taking of any other action),the fact that at the time of taking any such action the holders of suchspecified percentage have joined therein may be evidenced (a) by anyinstrument or any number of instruments of similar tenor executed by suchSecurityholders in person or by agent or proxy appointed in writing, or (b) bythe record of such holders of Debt Securities voting in favor thereof at anymeeting of such Securityholders duly called and held in accordance with theprovisions of Article VIII, or (c) by a combination of suchinstrument or instruments and any such record of such a meeting of suchSecurityholders or (d) by any other method the Trustee deems satisfactory.

 

If the Company shall solicit from the Securityholdersany request, demand, authorization, direction, notice, consent, waiver or otheraction or revocation of the same, the Company may, at its option, as evidencedby an Officers’ Certificate, fix in advance a record date for such DebtSecurities for the determination of Securityholders entitled to give suchrequest, demand, authorization, direction, notice, consent, waiver or otheraction or revocation of the same, but the Company shall have no obligation todo so.  If such a record date is fixed,such request, demand, authorization, direction, notice, consent, waiver orother action or revocation of the same may be given before or after the recorddate, but only the Securityholders of record at the close of business on therecord date shall be deemed to be Securityholders for the purposes ofdetermining whether Securityholders of the requisite proportion of outstandingDebt Securities have authorized or agreed or consented to such request, demand,authorization, direction, notice,

 

37

----

 

consent, waiver or other action or revocation of the same, and for thatpurpose the outstanding Debt Securities shall be computed as of the recorddate; provided, however, that no such authorization, agreement orconsent by such Securityholders on the record date shall be deemed effectiveunless it shall become effective pursuant to the provisions of this Indenturenot later than six months after the record date.

 

Section 7.02.                             Proofof Execution by Securityholders.

 

Subject to the provisions of Sections 6.01, 6.02 and8.05, proof of the execution of any instrument by a Securityholder or suchSecurityholder’s agent or proxy shall be sufficient if made in accordance withsuch reasonable rules and regulations as may be prescribed by the Trusteeor in such manner as shall be satisfactory to the Trustee.  The ownership of Debt Securities shall beproved by the Debt Security Register or by a certificate of the Debt Securityregistrar.  The Trustee may require suchadditional proof of any matter referred to in this Section as it shalldeem necessary.

 

The record of any Securityholders’ meeting shall beproved in the manner provided in Section 8.06.

 

Section 7.03.                             WhoAre Deemed Absolute Owners.

 

Prior to due presentment for registration of transferof any Debt Security, the Company, the Trustee, any Authenticating Agent, anyPaying Agent, any transfer agent and any Debt Security registrar may deem thePerson in whose name such Debt Security shall be registered upon the DebtSecurity Register to be, and may treat such Person as, the absolute owner ofsuch Debt Security (whether or not such Debt Security shall be overdue) for thepurpose of receiving payment of or on account of the principal of, premium, ifany, and interest on such Debt Security and for all other purposes; and neitherthe Company nor the Trustee nor any Authenticating Agent nor any Paying Agentnor any transfer agent nor any Debt Security registrar shall be affected by anynotice to the contrary.  All suchpayments so made to any holder for the time being or upon such holder’s ordershall be valid, and, to the extent of the sum or sums so paid, effectual tosatisfy and discharge the liability for moneys payable upon any such DebtSecurity.

 

Section 7.04.                             DebtSecurities Owned by Company Deemed Not Outstanding.

 

In determining whether the holders of the requisiteaggregate principal amount of Debt Securities have concurred in any direction,consent or waiver under this Indenture, Debt Securities which are owned by theCompany or any other obligor on the Debt Securities or by any Person directlyor indirectly controlling or controlled by or under direct or indirect commoncontrol with the Company (other than the Trust) or any other obligor on theDebt Securities shall be disregarded and deemed not to be outstanding for thepurpose of any such determination; provided, that for the purposes ofdetermining whether the Trustee shall be protected in relying on any suchdirection, consent or waiver, only Debt Securities which a Responsible Officerof the Trustee actually knows are so owned shall be so disregarded.  Debt Securities so owned which have beenpledged in good faith may be regarded as outstanding for the purposes of this Section 7.04if the pledgee shall establish to the satisfaction of the Trustee the pledgee’sright to

 

38

----

 

vote such Debt Securitiesand that the pledgee is not the Company or any such other obligor or Persondirectly or indirectly controlling or controlled by or under direct or indirectcommon control with the Company or any such other obligor.  In the case of a dispute as to such right,any decision by the Trustee taken upon the advice of counsel shall be fullprotection to the Trustee.

 

Section 7.05.                             Revocationof Consents; Future Holders Bound.

 

At any time prior to (but not after) the evidencing tothe Trustee, as provided in Section 7.01, of the taking of any action bythe holders of the percentage in aggregate principal amount of the DebtSecurities specified in this Indenture in connection with such action, anyholder (in cases where no record date has been set pursuant to Section 7.01)or any holder as of an applicable record date (in cases where a record date hasbeen set pursuant to Section 7.01) of a Debt Security (or any DebtSecurity issued in whole or in part in exchange or substitution therefor) theserial number of which is shown by the evidence to be included in the DebtSecurities the holders of which have consented to such action may, by filingwritten notice with the Trustee at the Principal Office of the Trustee and uponproof of holding as provided in Section 7.02, revoke such action so far asconcerns such Debt Security (or so far as concerns the principal amountrepresented by any exchanged or substituted Debt Security).  Except as aforesaid any such action taken bythe holder of any Debt Security shall be conclusive and binding upon suchholder and upon all future holders and owners of such Debt Security, and of anyDebt Security issued in exchange or substitution therefor or on registration oftransfer thereof, irrespective of whether or not any notation in regard theretois made upon such Debt Security or any Debt Security issued in exchange orsubstitution therefor.

 

ARTICLE VIIISECURITYHOLDERS’ MEETINGS

 

Section 8.01.                             Purposesof Meetings.

 

A meeting of Securityholders may be called at any timeand from time to time pursuant to the provisions of this Article VIII forany of the following purposes:

 

(a)                                  togive any notice to the Company or to the Trustee, or to give any directions tothe Trustee, or to consent to the waiving of any default hereunder and itsconsequences, or to take any other action authorized to be taken bySecurityholders pursuant to any of the provisions of Article V;

 

(b)                                 toremove the Trustee and nominate a successor trustee pursuant to the provisionsof Article VI;

 

(c)                                  toconsent to the execution of an indenture or indentures supplemental heretopursuant to the provisions of Section 9.02; or

 

(d)                                 totake any other action authorized to be taken by or on behalf of the holders ofany specified aggregate principal amount of such Debt Securities under anyother provision of this Indenture or under applicable law.

 

39

----

 

Section 8.02.                             Callof Meetings by Trustee.

 

The Trustee may at any time call a meeting ofSecurityholders to take any action specified in Section 8.01, to be heldat such time and at such place in New York or Wilmington, Delaware, as theTrustee shall determine.  Notice of everymeeting of the Securityholders, setting forth the time and the place of suchmeeting and in general terms the action proposed to be taken at such meeting,shall be mailed to holders of Debt Securities affected at their addresses asthey shall appear on the Debt Securities Register.  Such notice shall be mailed not less than 20nor more than 180 days prior to the date fixed for the meeting.

 

Section 8.03.                             Callof Meetings by Company or Securityholders.

 

In case at any time the Company pursuant to a BoardResolution, or the holders of at least 10% in aggregate principal amount of theDebt Securities, as the case may be, then outstanding, shall have requested theTrustee to call a meeting of Securityholders, by written request setting forthin reasonable detail the action proposed to be taken at the meeting, and theTrustee shall not have mailed the notice of such meeting within 20 days afterreceipt of such request, then the Company or such Securityholders may determinethe time and the place in Los Alamos, New Mexicofor such meeting and may call such meeting to take any action authorized in Section 8.01,by mailing notice thereof as provided in Section 8.02.

 

Section 8.04.                             Qualificationsfor Voting.

 

To be entitled to vote at any meeting ofSecurityholders a Person shall be (a) a holder of one or more DebtSecurities with respect to which the meeting is being held or (b) a Personappointed by an instrument in writing as proxy by a holder of one or more suchDebt Securities.  The only Persons whoshall be entitled to be present or to speak at any meeting of Securityholdersshall be the Persons entitled to vote at such meeting and their counsel and anyrepresentatives of the Trustee and its counsel and any representatives of theCompany and its counsel.

 

Section 8.05.                             Regulations.

 

Notwithstanding any other provisions of thisIndenture, the Trustee may make such reasonable regulations as it may deemadvisable for any meeting of Securityholders, in regard to proof of the holdingof Debt Securities and of the appointment of proxies, and in regard to theappointment and duties of inspectors of votes, the submission and examinationof proxies, certificates and other evidence of the right to vote, and suchother matters concerning the conduct of the meeting as it shall deemappropriate.

 

The Trustee shall, by an instrument in writing,appoint a temporary chairman of the meeting, unless the meeting shall have beencalled by the Company or by Securityholders as provided in Section 8.03,in which case the Company or the Securityholders calling the meeting, as thecase may be, shall in like manner appoint a temporary chairman. A permanentchairman and a permanent secretary of the meeting shall be elected by majorityvote at the meeting.

 

Subject to the provisions of Section 7.04, at anymeeting each holder of Debt Securities with respect to which such meeting isbeing held or proxy therefor shall be entitled to

 

40

----

 

one vote for each $1,000principal amount of Debt Securities held or represented by such holder; provided,however, that no vote shall be cast or counted at any meeting in respectof any Debt Security challenged as not outstanding and ruled by the chairman ofthe meeting to be not outstanding.  Thechairman of the meeting shall have no right to vote other than by virtue ofDebt Securities held by such chairman or instruments in writing as aforesaidduly designating such chairman as the Person to vote on behalf of otherSecurityholders.  Any meeting ofSecurityholders duly called pursuant to the provisions of Section 8.02 or8.03 may be adjourned from time to time by a majority of those present, whetheror not constituting a quorum, and the meeting may be held as so adjournedwithout further notice.

 

Section 8.06.                             Voting.

 

The vote upon any resolution submitted to any meetingof holders of Debt Securities with respect to which such meeting is being heldshall be by written ballots on which shall be subscribed the signatures of suchholders or of their representatives by proxy and the serial number or numbersof the Debt Securities held or represented by them.  The permanent chairman of the meeting shallappoint two inspectors of votes who shall count all votes cast at the meetingfor or against any resolution and who shall make and file with the secretary ofthe meeting their verified written reports in triplicate of all votes cast atthe meeting. A record in duplicate of the proceedings of each meeting ofSecurityholders shall be prepared by the secretary of the meeting and thereshall be attached to said record the original reports of the inspectors ofvotes on any vote by ballot taken thereat and affidavits by one or more Personshaving knowledge of the facts setting forth a copy of the notice of the meetingand showing that said notice was mailed as provided in Section 8.02.  The record shall show the serial numbers ofthe Debt Securities voting in favor of or against any resolution. The recordshall be signed and verified by the affidavits of the permanent chairman andsecretary of the meeting and one of the duplicates shall be delivered to theCompany and the other to the Trustee to be preserved by the Trustee, the latterto have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusiveevidence of the matters therein stated.

 

Section 8.07.                             Quorum; Actions.

 

The Persons entitled to vote a majority in outstandingprincipal amount of the Debt Securities shall constitute a quorum for a meetingof Securityholders; provided, however, that if any action is tobe taken at such meeting with respect to a consent, waiver, request, demand,notice, authorization, direction or other action which may be given by theholders of not less than a specified percentage in outstanding principal amountof the Debt Securities, the Persons holding or representing such specifiedpercentage in outstanding principal amount of the Debt Securities willconstitute a quorum.  In the absence of aquorum within 30 minutes of the time appointed for any such meeting, themeeting shall, if convened at the request of Securityholders, bedissolved.  In any other case the meetingmay be adjourned for a period of not less than 10 days as determined by thepermanent chairman of the meeting prior to the adjournment of suchmeeting.  In the absence of a quorum atany such adjourned meeting, such adjourned meeting may be further adjourned fora period of not less than 10 days as determined by the permanent chairman ofthe meeting prior to the adjournment of such adjourned meeting.

 

41

----

 

Notice of the reconveningof any adjourned meeting shall be given as provided in Section 8.02,except that such notice need be given only once not less than five days priorto the date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjournedmeeting shall state expressly the percentage, as provided above, of theoutstanding principal amount of the Debt Securities which shall constitute aquorum.

 

Except as limited by the proviso in the firstparagraph of Section 9.02, any resolution presented to a meeting oradjourned meeting duly reconvened at which a quorum is present as aforesaid maybe adopted by the affirmative vote of the holders of not less than a majorityin outstanding principal amount of the Debt Securities; provided, however,that, except as limited by the proviso in the first paragraph of Section 9.02,any resolution with respect to any consent, waiver, request, demand, notice,authorization, direction or other action that this Indenture expressly providesmay be given by the holders of not less than a specified percentage inoutstanding principal amount of the Debt Securities may be adopted at a meetingor an adjourned meeting duly reconvened and at which a quorum is present asaforesaid only by the affirmative vote of the holders of not less than suchspecified percentage in outstanding principal amount of the Debt Securities.

 

Any resolution passed or decision taken at any meetingof holders of Debt Securities duly held in accordance with this Section shallbe binding on all the Securityholders, whether or not present or represented atthe meeting.

 

ARTICLE IXSUPPLEMENTAL INDENTURES

 

Section 9.01.                             SupplementalIndentures without Consent of Securityholders.

 

The Company, when authorized by a Board Resolution,and the Trustee may from time to time and at any time enter into an indentureor indentures supplemental hereto, without the consent of the Securityholders,for one or more of the following purposes:

 

(a)                                  toevidence the succession of another corporation to the Company, or successive successions,and the assumption by the successor corporation of the covenants, agreementsand obligations of the Company, pursuant to Article XI hereof;

 

(b)                                 toadd to the covenants of the Company such further covenants, restrictions orconditions for the protection of the holders of Debt Securities as the Board ofDirectors shall consider to be for the protection of the holders of such DebtSecurities, and to make the occurrence, or the occurrence and continuance, of aDefault in any of such additional covenants, restrictions or conditions aDefault or an Event of Default permitting the enforcement of all or any of theseveral remedies provided in this Indenture as herein set forth; provided,however, that in respect of any such additional covenant, restriction orcondition such supplemental indenture may provide for a particular period ofgrace after Default (which period may be shorter or longer than that allowed inthe case of other Defaults) or may provide for an immediate enforcement uponsuch Default or may limit the remedies available to the Trustee upon suchdefault;

 

42

----

 

(c)                                  tocure any ambiguity or to correct or supplement any provision contained hereinor in any supplemental indenture which may be defective or inconsistent withany other provision contained herein or in any supplemental indenture, or tomake such other provisions in regard to matters or questions arising under thisIndenture; provided, that any such action shall not adversely affect theinterests of the holders of the Debt Securities;

 

(d)                                 toadd to, delete from, or revise the terms of Debt Securities, including, withoutlimitation, any terms relating to the issuance, exchange, registration ortransfer of Debt Securities, including to provide for transfer procedures andrestrictions substantially similar to those applicable to the CapitalSecurities, as required by Section 2.05 (for purposes of assuring that noregistration of Debt Securities is required under the Securities Act; provided,that any such action shall not adversely affect the interests of the holders ofthe Debt Securities then outstanding (it being understood, for purposes of thisproviso, that transfer restrictions on Debt Securities substantially similar tothose applicable to Capital Securities shall not be deemed to adversely affectthe holders of the Debt Securities);

 

(e)                                  toevidence and provide for the acceptance of appointment hereunder by a successorTrustee with respect to the Debt Securities and to add to or change any of theprovisions of this Indenture as shall be necessary to provide for or facilitatethe administration of the trusts hereunder by more than one Trustee, pursuantto the requirements of Section 6.10;

 

(f)                                    tomake any change (other than as elsewhere provided in this paragraph) that doesnot adversely affect the rights of any Securityholder in any material respect;or

 

(g)                                 toprovide for the issuance of and establish the form and terms and conditions ofthe Debt Securities, to establish the form of any certifications required to befurnished pursuant to the terms of this Indenture or the Debt Securities, or toadd to the rights of the holders of Debt Securities.

 

The Trustee is hereby authorized to join with theCompany in the execution of any such supplemental indenture, to make anyfurther appropriate agreements and stipulations which may be therein containedand to accept the conveyance, transfer and assignment of any propertythereunder, but the Trustee shall not be obligated to, but may in its discretion,enter into any such supplemental indenture which affects the Trustee’s ownrights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by theprovisions of this Section 9.01 may be executed by the Company and theTrustee without the consent of the holders of any of the Debt Securities at thetime outstanding, notwithstanding any of the provisions of Section 9.02.

 

Section 9.02.                             SupplementalIndentures with Consent of Securityholders.

 

With the consent (evidenced as provided in Section 7.01)of the holders of not less than a majority in aggregate principal amount of theDebt Securities at the time outstanding affected by such supplemental indenture(voting as a class), the Company, when authorized by a Board Resolution, andthe Trustee may from time to time and at any time enter into an indenture orindentures supplemental hereto (which shall conform to the provisions of theTrust Indenture Act, then in effect, applicable to indentures qualifiedthereunder) for the purpose of adding any

 

43

----

 

provisions to or changingin any manner or eliminating any of the provisions of this Indenture or of anysupplemental indenture or of modifying in any manner the rights of the holdersof the Debt Securities; provided, however, that no suchsupplemental indenture shall without such consent of the holders of each DebtSecurity then outstanding and affected thereby (i) extend the fixedmaturity of any Debt Security, or reduce the principal amount thereof or anypremium thereon, or reduce the rate or extend the time of payment of interestthereon, or reduce any amount payable on redemption thereof or make theprincipal thereof or any interest or premium thereon payable in any coin orcurrency other than that provided in the Debt Securities, or impair or affectthe right of any Securityholder to institute suit for payment thereof or impairthe right of repayment, if any, at the option of the holder, or (ii) reducethe aforesaid percentage of Debt Securities the holders of which are requiredto consent to any such supplemental indenture; and provided, further,that if the Debt Securities are held by the Trust or a trustee of such trust,such supplemental indenture shall not be effective until the holders of amajority in liquidation preference of the Trust Securities shall have consentedto such supplemental indenture; provided, further, that if theconsent of the Securityholder of each outstanding Debt Security is required,such supplemental indenture shall not be effective until each holder of theTrust Securities shall have consented to such supplemental indenture.

 

Upon the request of the Company accompanied by a BoardResolution authorizing the execution of any such supplemental indenture, andupon the filing with the Trustee of evidence of the consent of Securityholdersas aforesaid, the Trustee shall join with the Company in the execution of suchsupplemental indenture unless such supplemental indenture affects the Trustee’sown rights, duties or immunities under this Indenture or otherwise, in whichcase the Trustee may in its discretion, but shall not be obligated to, enterinto such supplemental indenture.

 

Promptly after the execution by the Company and theTrustee of any supplemental indenture pursuant to the provisions of thisSection, the Trustee shall transmit by mail, first class postage prepaid, anotice, prepared by the Company, setting forth in general terms the substanceof such supplemental indenture, to the Securityholders as their names andaddresses appear upon the Debt Security Register.  Any failure of the Trustee to mail suchnotice, or any defect therein, shall not, however, in any way impair or affectthe validity of any such supplemental indenture.

 

It shall not be necessary for the consent of theSecurityholders under this Section 9.02 to approve the particular form ofany proposed supplemental indenture, but it shall be sufficient if such consentshall approve the substance thereof.

 

Section 9.03.                             Effectof Supplemental Indentures.

 

Upon the execution of any supplemental indenturepursuant to the provisions of this Article IX, this Indenture shall be andbe deemed to be modified and amended in accordance therewith and the respectiverights, limitations of rights, obligations, duties and immunities under thisIndenture of the Trustee, the Company and the holders of Debt Securities shallthereafter be determined, exercised and enforced hereunder subject in allrespects to such modifications and amendments and all the terms and conditionsof any such supplemental indenture shall be and be deemed to be part of theterms and conditions of this Indenture for any and all purposes.

 

44

----

 

Section 9.04.                             Notationon Debt Securities.

 

Debt Securities authenticated and delivered after theexecution of any supplemental indenture pursuant to the provisions of this Article IXmay bear a notation as to any matter provided for in such supplementalindenture.  If the Company or the Trusteeshall so determine, new Debt Securities so modified as to conform, in theopinion of the Board of Directors of the Company, to any modification of thisIndenture contained in any such supplemental indenture may be prepared andexecuted by the Company, authenticated by the Trustee or the AuthenticatingAgent and delivered in exchange for the Debt Securities then outstanding.

 

Section 9.05.                             Evidenceof Compliance of Supplemental Indenture to be Furnished to Trustee.

 

The Trustee, subject to the provisions ofSections 6.01 and 6.02, shall, in addition to the documents required by Section 14.06,receive an Officers’ Certificate and an Opinion of Counsel as conclusiveevidence that any supplemental indenture executed pursuant hereto complies withthe requirements of this Article IX. The Trustee shall receive an Opinion of Counsel as conclusive evidencethat any supplemental indenture executed pursuant to this Article IX isauthorized or permitted by, and conforms to, the terms of this Article IXand that it is proper for the Trustee under the provisions of this Article IXto join in the execution thereof.

 

ARTICLE XREDEMPTION OF SECURITIES

 

Section 10.01.                       OptionalRedemption.

 

At any time the Companyshall have the right, subject to the receipt by the Company of prior approvalfrom the Federal Reserve, if then required under applicable capital guidelinesor policies of the Federal Reserve, to redeem the Debt Securities, in whole orin part, on any February 23, May 23, August 23and November 23 on or after August 23, 2010 (the “RedemptionDate”), at the Redemption Price.

 

Section 10.02.                       SpecialEvent Redemption.

 

If a Special Event shall occur and be continuing, theCompany shall have the right, subject to the receipt by the Company of priorapproval from the Federal Reserve if then required under applicable capitalguidelines or policies of the Federal Reserve, to redeem the Debt Securities,in whole but not in part, at any time within 90 days following the occurrenceof such Special Event (the “Special Redemption Date”), at the SpecialRedemption Price.

 

Section 10.03.                       Noticeof Redemption; Selection of Debt Securities.

 

In case the Company shall desire to exercise the rightto redeem all, or, as the case may be, any part of the Debt Securities, itshall fix a date for redemption and shall mail a notice of such redemption atleast 30 and not more than 60 days prior to the date fixed for redemption tothe holders of Debt Securities so to be redeemed as a whole or in part at theirlast addresses as

 

45

----

the same appear on theDebt Security Register.  Such mailingshall be by first class mail.  The noticeif mailed in the manner herein provided shall be conclusively presumed to havebeen duly given, whether or not the holder receives such notice.  In any case, failure to give such notice bymail or any defect in the notice to the holder of any Debt Security designatedfor redemption as a whole or in part shall not affect the validity of theproceedings for the redemption of any other Debt Security.

 

Each such notice of redemption shall specify the CUSIPnumber, if any, of the Debt Securities to be redeemed, the date fixed forredemption, the redemption price at which Debt Securities are to be redeemed,the place or places of payment, that payment will be made upon presentation andsurrender of such Debt Securities, that interest accrued to the date fixed forredemption will be paid as specified in said notice, and that on and after saiddate interest thereon or on the portions thereof to be redeemed will cease toaccrue. If less than all the Debt Securities are to be redeemed the notice ofredemption shall specify the numbers of the Debt Securities to beredeemed.  In case the Debt Securitiesare to be redeemed in part only, the notice of redemption shall state theportion of the principal amount thereof to be redeemed and shall state that onand after the date fixed for redemption, upon surrender of such Debt Security,a new Debt Security or Debt Securities in principal amount equal to theunredeemed portion thereof will be issued.

 

Prior to 10:00 a.m. New York City time on theRedemption Date or the Special Redemption Date specified in the notice ofredemption given as provided in this Section, the Company will deposit with theTrustee or with one or more Paying Agents an amount of money sufficient toredeem on the redemption date all the Debt Securities so called for redemptionat the appropriate redemption price, together with accrued interest to the datefixed for redemption.

 

The Company will give the Trustee notice not less than45 nor more than 60 days prior to the redemption date as to the redemptionprice at which the Debt Securities are to be redeemed and the aggregateprincipal amount of Debt Securities to be redeemed and the Trustee shallselect, in such manner as in its sole discretion it shall deem appropriate andfair, the Debt Securities or portions thereof (in integral multiples of $1,000)to be redeemed.

 

Section 10.04.        Payment of Debt Securities Called forRedemption.

 

If notice of redemption has been given as provided in Section 10.03,the Debt Securities or portions of Debt Securities with respect to which suchnotice has been given shall become due and payable on the Redemption Date orthe Special Redemption Date (as the case may be) and at the place or placesstated in such notice at the applicable redemption price, together withinterest accrued to the date fixed for redemption, and on and after saidRedemption Date or the Special Redemption Date (unless the Company shalldefault in the payment of such Debt Securities at the redemption price,together with interest accrued to said date) interest on the Debt Securities orportions of Debt Securities so called for redemption shall cease toaccrue.  On presentation and surrender ofsuch Debt Securities at a place of payment specified in said notice, such DebtSecurities or the specified portions thereof shall be paid and redeemed by theCompany at the applicable redemption price, together with interest accruedthereon to the Redemption Date or the Special Redemption Date (as the case maybe).

 

46

----

 

Upon presentation of any Debt Security redeemed inpart only, the Company shall execute and the Trustee shall authenticate andmake available for delivery to the holder thereof, at the expense of theCompany, a new Debt Security or Debt Securities of authorized denominations inprincipal amount equal to the unredeemed portion of the Debt Security sopresented.

 

ARTICLE XICONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

 

Section 11.01.        Company May Consolidate, etc.,on Certain Terms.

 

Nothing contained in this Indenture or in the DebtSecurities shall prevent any consolidation or merger of the Company with orinto any other corporation or corporations (whether or not affiliated with theCompany) or successive consolidations or mergers in which the Company or itssuccessor or successors shall be a party or parties, or shall prevent any sale,conveyance, transfer or other disposition of the property or capital stock ofthe Company or its successor or successors as an entirety, or substantially asan entirety, to any other corporation (whether or not affiliated with theCompany, or its successor or successors) authorized to acquire and operate thesame; provided, however, that the Company hereby covenants andagrees that, upon any such consolidation, merger (where the Company is not thesurviving corporation), sale, conveyance, transfer or other disposition, thedue and punctual payment of all payments due on all of the Debt Securities inaccordance with their terms, according to their tenor, and the due and punctualperformance and observance of all the covenants and conditions of thisIndenture to be kept or performed by the Company, shall be expressly assumed bysupplemental indenture reasonably satisfactory in form to the Trustee executedand delivered to the Trustee by the entity formed by such consolidation, orinto which the Company shall have been merged, or by the entity which shallhave acquired such property or capital stock.

 

Section 11.02.        Successor Entity to be Substituted.

 

In case of any such consolidation, merger, sale,conveyance, transfer or other disposition contemplated in Section 11.01and upon the assumption by the successor entity, by supplemental indenture,executed and delivered to the Trustee and reasonably satisfactory in form tothe Trustee, of the due and punctual payment of the principal of and premium,if any, and interest on all of the Debt Securities and the due and punctual performanceand observance of all of the covenants and conditions of this Indenture to beperformed or observed by the Company, such successor entity shall succeed toand be substituted for the Company, with the same effect as if it had beennamed herein as the Company, and thereupon the predecessor entity shall berelieved of any further liability or obligation hereunder or upon the DebtSecurities.  Such successor entitythereupon may cause to be signed, and may issue either in its own name or inthe name of the Company, any or all of the Debt Securities issuable hereunderwhich theretofore shall not have been signed by the Company and delivered tothe Trustee or the 

 

47

----

 

Authenticating Agent;and, upon the order of such successor entity instead of the Company and subjectto all the terms, conditions and limitations in this Indenture prescribed, theTrustee or the Authenticating Agent shall authenticate and deliver any DebtSecurities which previously shall have been signed and delivered by theofficers of the Company, to the Trustee or the Authenticating Agent forauthentication, and any Debt Securities which such successor entity thereaftershall cause to be signed and delivered to the Trustee or the AuthenticatingAgent for that purpose.  All the DebtSecurities so issued shall in all respects have the same legal rank and benefitunder this Indenture as the Debt Securities theretofore or thereafter issued inaccordance with the terms of this Indenture as though all of such DebtSecurities had been issued at the date of the execution hereof.

 

Section 11.03.        Opinion of Counsel to be Given toTrustee.

 

The Trustee, subject to the provisions of Sections6.01 and 6.02, shall receive, in addition to the Opinion of Counsel required bySection 9.05, an Opinion of Counsel as conclusive evidence that anyconsolidation, merger, sale, conveyance, transfer or other disposition, and any assumption, permitted or requiredby the terms of this Article XI complies with the provisions of this Article XI.

 

ARTICLE XIISATISFACTION AND DISCHARGE OF INDENTURE

 

Section 12.01.        Discharge of Indenture.

 

When (a) the Company shall deliver to the Trusteefor cancellation all Debt Securities theretofore authenticated (other than anyDebt Securities which shall have been destroyed, lost or stolen and which shallhave been replaced or paid as provided in Section 2.06) and nottheretofore canceled, or (b) all the Debt Securities not theretoforecanceled or delivered to the Trustee for cancellation shall have become due andpayable, or are by their terms to become due and payable within one year or areto be called for redemption within one year under arrangements satisfactory tothe Trustee for the giving of notice of redemption, and the Company shalldeposit with the Trustee, in trust, funds, which shall be immediately due andpayable, sufficient to pay at maturity or upon redemption all of the DebtSecurities (other than any Debt Securities which shall have been destroyed,lost or stolen and which shall have been replaced or paid as provided in Section 2.06)not theretofore canceled or delivered to the Trustee for cancellation,including principal and premium, if any, and interest due or to become due tosuch date of maturity or redemption date, as the case may be, but excluding,however, the amount of any moneys for the payment of principal of, and premium,if any, or interest on the Debt Securities (1) theretofore repaid to theCompany in accordance with the provisions of Section 12.04, or (2) paidto any state or to the District of Columbia pursuant to its unclaimed propertyor similar laws, and if in the case of either clause (a) or clause (b) theCompany shall also pay or cause to be paid all other sums payable hereunder bythe Company, then this Indenture shall cease to be of further effect except forthe provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04hereof, which shall survive until such Debt Securities shall mature or areredeemed, as the case may be, and are paid. Thereafter, Sections 6.06, 6.09 and 12.04 shall survive, and theTrustee, on demand of the Company accompanied by an Officers’ Certificate andan Opinion of Counsel, each stating that all conditions precedent hereinprovided for relating to the satisfaction and discharge of this Indenture havebeen complied with, and at the cost and expense of the Company, shall executeproper instruments acknowledging satisfaction of and discharging thisIndenture, the Company, however, hereby agreeing to reimburse the Trustee for 

 

48

----

 

any costs or expenses thereafter reasonably and properly incurred bythe Trustee in connection with this Indenture or the Debt Securities.

 

Section 12.02.        Deposited Moneys to be Held in Trustby Trustee.

 

Subject to the provisions of Section 12.04, allmoneys deposited with the Trustee pursuant to Section 12.01 shall be heldin trust and applied by it to the payment, either directly or through anyPaying Agent (including the Company if acting as its own Paying Agent), to theholders of the particular Debt Securities for the payment of which such moneyshave been deposited with the Trustee, of all sums due and to become due thereonfor principal, and premium, if any, and interest.

 

Section 12.03.        Paying Agent to Repay Moneys Held.

 

Upon the satisfaction and discharge of this Indenture,all moneys then held by any Paying Agent of the Debt Securities (other than theTrustee) shall, upon demand of the Company, be repaid to the Company or paid tothe Trustee, and thereupon such Paying Agent shall be released from all furtherliability with respect to such moneys.

 

Section 12.04.        Return of Unclaimed Moneys.

 

Any moneys deposited with or paid to the Trustee orany Paying Agent for payment of the principal of, and premium, if any, orinterest on Debt Securities and not applied but remaining unclaimed by theholders of Debt Securities for two years after the date upon which theprincipal of, and premium, if any, or interest on such Debt Securities, as the casemay be, shall have become due and payable, shall be repaid to the Company bythe Trustee or such Paying Agent on written demand; and the holder of any ofthe Debt Securities shall thereafter look only to the Company for any paymentwhich such holder may be entitled to collect and all liability of the Trusteeor such Paying Agent with respect to such moneys shall thereupon cease.

 

ARTICLE XIIIIMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

 

Section 13.01.        Indenture and Debt Securities SolelyCorporate Obligations.

 

No recourse for the payment of the principal of orpremium, if any, or interest on any Debt Security, or for any claim basedthereon or otherwise in respect thereof, and no recourse under or upon anyobligation, covenant or agreement of the Company in this Indenture or in anysupplemental indenture, or in any such Debt Security, or because of thecreation of any indebtedness represented thereby, shall be had against anyincorporator, stockholder, officer, director, employee or agent, as such, past,present or future, of the Company or of any predecessor or successorcorporation of the Company, either directly or through the Company or anysuccessor corporation of the Company, whether by virtue of any constitution,statute or rule of law, or by the enforcement of any assessment or penaltyor otherwise; it being expressly understood that all such liability is herebyexpressly waived and released as a condition of, and as a consideration for,the execution of this Indenture and the issue of the Debt Securities.

 

49

----

 

ARTICLE XIVMISCELLANEOUS PROVISIONS

 

Section 14.01.        Successors.

 

All the covenants, stipulations, promises andagreements of the Company contained in this Indenture shall bind its successorsand assigns whether so expressed or not.

 

Section 14.02.        Official Acts by Successor Entity.

 

Any act or proceeding by any provision of thisIndenture authorized or required to be done or performed by any board,committee or officer of the Company shall and may be done and performed withlike force and effect by the like board, committee, officer or other authorizedPerson of any entity that shall at the time be the lawful successor of theCompany.

 

Section 14.03.        Surrender of Company Powers.

 

The Company by instrument in writing executed byauthority of 2/3 (two-thirds) of its Board of Directors and delivered to theTrustee may surrender any of the powers reserved to the Company and thereuponsuch power so surrendered shall terminate both as to the Company and as to anypermitted successor.

 

Section 14.04.        Addresses for Notices, etc.

 

Any notice or demand which by any provision of thisIndenture is required or permitted to be given or served by the Trustee or bythe Securityholders on the Company may be given or served in writing by beingdeposited postage prepaid by registered or certified mail in a post officeletter box addressed (until another address is filed by the Company with theTrustee for such purpose) to the Company at:

 

1200 Trinity Drive

Los Alamos, New Mexico 87544

Attention: Daniel R.Bartholomew

 

Any notice, direction, request or demand by anySecurityholder or the Company to or upon the Trustee shall be deemed to havebeen sufficiently given or made, for all purposes, if given or made in writingat the office of Wilmington Trust Company at:

 

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Capital Markets

 

50

----

 

Section 14.05.        GoverningLaw.

 

This Indenture and each Debt Security shall be deemedto be a contract made under the law of the State of New York, and for allpurposes shall be governed by and construed in accordance with the law of saidState, without regard to conflict of laws principles thereof.

 

Section 14.06.        Evidence of Compliance withConditions Precedent.

 

Upon any application or demand by the Company to theTrustee to take any action under any of the provisions of this Indenture, theCompany shall furnish to the Trustee an Officers’ Certificate stating that inthe opinion of the signers all conditions precedent, if any, provided for inthis Indenture relating to the proposed action have been complied with and anOpinion of Counsel stating that, in the opinion of such counsel, all suchconditions precedent have been complied with (except that no such Opinion of Counsel is required to be furnished tothe Trustee in connection with the authentication and issuance of DebtSecurities issued on the date of this Indenture).

 

Each certificate or opinion provided for in thisIndenture and delivered to the Trustee with respect to compliance with acondition or covenant provided for in this Indenture (except certificatesdelivered pursuant to Section 3.05) shall include (a) a statementthat the person making such certificate or opinion has read such covenant orcondition; (b) a brief statement as to the nature and scope of theexamination or investigation upon which the statements or opinions contained insuch certificate or opinion are based; (c) a statement that, in theopinion of such person, he or she has made such examination or investigation asis necessary to enable him or her to express an informed opinion as to whetheror not such covenant or condition has been complied with; and (d) astatement as to whether or not, in the opinion of such person, such conditionor covenant has been complied with.

 

Section 14.07.        Business Day Convention..

 

Notwithstanding anything to the contrary containedherein, if any Interest Payment Date, other than the Maturity Date, anyRedemption Date or the Special Redemption Date, falls on a day that is not aBusiness Day, then any interest payable will be paid on, and such InterestPayment Date will be moved to, the next succeeding Business Day, and noadditional interest will accrue for each day that such payment is delayed as aresult thereof.  If the Maturity Date,any Redemption Date or the Special Redemption Date falls on a day that is not aBusiness Day, then the principal, premium, if any, and/or interest payable onsuch date will be paid on the next succeeding Business Day, and no additionalinterest will accrue in respect of such payment made on such next succeedingBusiness Day.

 

Section 14.08.        Table of Contents, Headings, etc.

 

The table of contents and the titles and headings ofthe articles and sections of this Indenture have been inserted for convenienceof reference only, are not to be considered a part hereof, and shall in no waymodify or restrict any of the terms or provisions hereof.

 

51

----

 

Section 14.09.        Execution in Counterparts.

 

This Indenture may be executed in any number ofcounterparts, each of which shall be an original, but such counterparts shalltogether constitute but one and the same instrument.

 

Section 14.10.        Separability.

 

In case any one or more of the provisions contained inthis Indenture or in the Debt Securities shall for any reason be held to beinvalid, illegal or unenforceable in any respect, such invalidity, illegalityor unenforceability shall not affect any other provisions of this Indenture orof such Debt Securities, but this Indenture and such Debt Securities shall beconstrued as if such invalid or illegal or unenforceable provision had neverbeen contained herein or therein.

 

Section 14.11.        Assignment.

 

Subject to Article XI, the Company will have theright at all times to assign any of its rights or obligations under thisIndenture to a direct or indirect wholly owned Subsidiary of the Company, provided,that, in the event of any such assignment, the Company will remain liable forall such obligations.  Subject to theforegoing, this Indenture is binding upon and inures to the benefit of theparties hereto and their respective successors and assigns.  This Indenture may not otherwise be assignedby the parties thereto.

 

Section 14.12.        Acknowledgment of Rights.

 

The Company acknowledges that, with respect to anyDebt Securities held by the Trust or the Institutional Trustee of the Trust, ifthe Institutional Trustee of the Trust fails to enforce its rights under thisIndenture as the holder of Debt Securities held as the assets of the Trustafter the holders of a majority in Liquidation Amount of the Capital Securitiesof the Trust have so directed in writing such Institutional Trustee, a holderof record of such Capital Securities may to the fullest extent permitted by lawinstitute legal proceedings directly against the Company to enforce suchInstitutional Trustee’s rights under this Indenture without first institutingany legal proceedings against such Institutional Trustee or any otherPerson.  Notwithstanding the foregoing,if an Event of Default has occurred and is continuing and such event isattributable to the failure of the Company to pay interest (or premium, if any)or principal on the Debt Securities on the date such interest (or premium, ifany) or principal is otherwise due and payable (or in the case of redemption,on the redemption date), the Company acknowledges that a holder of record ofCapital Securities of the Trust may directly institute a proceeding against theCompany for enforcement of payment to such holder directly of the principal of(or premium, if any) or interest on the Debt Securities having an aggregateprincipal amount equal to the aggregate Liquidation Amount of the CapitalSecurities of such holder on or after the respective due date specified in theDebt Securities.

 

52

----

 

ARTICLE XVSUBORDINATION OF DEBT SECURITIES

 

Section 15.01.        Agreement to Subordinate.

 

The Company covenants and agrees, and each holder ofDebt Securities issued hereunder and under any supplemental indenture (the “AdditionalProvisions”) by such Securityholder’s acceptance thereof likewise covenants andagrees, that all Debt Securities shall be issued subject to the provisions ofthis Article XV; and each holder of a Debt Security, whether upon originalissue or upon transfer or assignment thereof, accepts and agrees to be bound bysuch provisions.

 

The payment by the Company of the payments due on allDebt Securities issued hereunder and under any Additional Provisions shall, tothe extent and in the manner hereinafter set forth, be subordinated and juniorin right of payment to the prior payment in full of all Senior Indebtedness ofthe Company, whether outstanding at the date of this Indenture or thereafterincurred.

 

No provision of this Article XV shall prevent theoccurrence of any default or Event of Default hereunder.

 

Section 15.02.        Default on Senior Indebtedness.

 

In the event and during the continuation of anydefault by the Company in the payment of principal, premium, interest or anyother payment due on any Senior Indebtedness of the Company following anyapplicable grace period, or in the event that the maturity of any SeniorIndebtedness of the Company has been accelerated because of a default, and suchacceleration has not been rescinded or canceled and such Senior Indebtednesshas not been paid in full then, in either case, no payment shall be made by theCompany with respect to the payments due on the Debt Securities.

 

In the event that, notwithstanding the foregoing, anypayment shall be received by the Trustee when such payment is prohibited by thepreceding paragraph of this Section 15.02, such payment shall, subject to Section 15.06,be held in trust for the benefit of, and shall be paid over or delivered to,the holders of Senior Indebtedness or their respective representatives, or tothe trustee or trustees under any indenture pursuant to which any of suchSenior Indebtedness may have been issued, as their respective interests mayappear, but only to the extent that the holders of the Senior Indebtedness (ortheir representative or representatives or a trustee) notify the Trustee inwriting within 90 days of such payment of the amounts then due and owing on theSenior Indebtedness and only the amounts specified in such notice to theTrustee shall be paid to the holders of Senior Indebtedness.

 

Section 15.03.        Liquidation; Dissolution; Bankruptcy.

 

Upon any payment by the Company or distribution ofassets of the Company of any kind or character, whether in cash, property orsecurities, to creditors upon any dissolution or winding-up or liquidation orreorganization of the Company, whether voluntary or involuntary or inbankruptcy, insolvency, receivership or other proceedings, all amounts due uponall Senior Indebtedness of the Company shall first be paid in full, or paymentthereof provided for in money in accordance with its terms, before any paymentis made by the Company on the Debt Securities; and upon any such dissolution orwinding-up or liquidation or reorganization, any payment by the Company, ordistribution of assets of the Company of any kind or character, 

 

53

----

 

whether in cash, property or securities, to which the Securityholdersor the Trustee would be entitled to receive from the Company, except for theprovisions of this Article XV, shall be paid by the Company, or by anyreceiver, trustee in bankruptcy, liquidating trustee, agent or other Personmaking such payment or distribution, or by the Securityholders or by theTrustee under this Indenture if received by them or it, directly to the holdersof Senior Indebtedness of the Company (pro rata to such holders on the basis ofthe respective amounts of Senior Indebtedness held by such holders, ascalculated by the Company) or their representative or representatives, or tothe trustee or trustees under any indenture pursuant to which any instruments evidencingsuch Senior Indebtedness may have been issued, as their respective interestsmay appear, to the extent necessary to pay such Senior Indebtedness in full, inmoney or money’s worth, after giving effect to any concurrent payment ordistribution to or for the holders of such Senior Indebtedness, before anypayment or distribution is made to the Securityholders or to the Trustee.

 

In the event that, notwithstanding the foregoing, anypayment or distribution of assets of the Company of any kind or character,whether in cash, property or securities, prohibited by the foregoing, shall bereceived by the Trustee or any Securityholder before all Senior Indebtedness ofthe Company is paid in full, or provision is made for such payment in money inaccordance with its terms, such payment or distribution shall be held in trustfor the benefit of and shall be paid over or delivered to the holders of suchSenior Indebtedness or their representative or representatives, or to thetrustee or trustees under any indenture pursuant to which any instrumentsevidencing such Senior Indebtedness may have been issued, as their respectiveinterests may appear, as calculated by the Company, for application to thepayment of all Senior Indebtedness of the Company remaining unpaid to theextent necessary to pay such Senior Indebtedness in full in money in accordancewith its terms, after giving effect to any concurrent payment or distributionto or for the benefit of the holders of such Senior Indebtedness.

 

For purposes of this Article XV, the words “cash,property or securities” shall not be deemed to include shares of stock of theCompany as reorganized or readjusted, or securities of the Company or any othercorporation provided for by a plan of reorganization or readjustment, thepayment of which is subordinated at least to the extent provided in this Article XVwith respect to the Debt Securities to the payment of all Senior Indebtednessof the Company, that may at the time be outstanding, provided, that (a) suchSenior Indebtedness is assumed by the new corporation, if any, resulting fromany such reorganization or readjustment, and (b) the rights of the holdersof such Senior Indebtedness are not, without the consent of such holders,altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Companyinto, another corporation or the liquidation or dissolution of the Companyfollowing the conveyance or transfer of its property as an entirety, orsubstantially as an entirety, to another corporation upon the terms andconditions provided for in Article XI of this Indenture shall not bedeemed a dissolution, winding-up, liquidation or reorganization for thepurposes of this Section 15.03 if such other corporation shall, as a partof such consolidation, merger, conveyance or transfer, comply with theconditions stated in Article XI of this Indenture.  Nothing in Section 15.02 or in this Section 15.03shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.06of this Indenture.

 

54

----

 

Section 15.04.        Subrogation.

 

Subject to the payment in full of all SeniorIndebtedness of the Company, the Securityholders shall be subrogated to therights of the holders of such Senior Indebtedness to receive payments ordistributions of cash, property or securities of the Company applicable to suchSenior Indebtedness until all payments due on the Debt Securities shall be paidin full; and, for the purposes of such subrogation, no payments ordistributions to the holders of such Senior Indebtedness of any cash, propertyor securities to which the Securityholders or the Trustee would be entitledexcept for the provisions of this Article XV, and no payment over pursuantto the provisions of this Article XV to or for the benefit of the holdersof such Senior Indebtedness by Securityholders or the Trustee, shall, asbetween the Company, its creditors other than holders of Senior Indebtedness ofthe Company, and the holders of the Debt Securities be deemed to be a paymentor distribution by the Company to or on account of such SeniorIndebtedness.  It is understood that theprovisions of this Article XV are and are intended solely for the purposesof defining the relative rights of the holders of the Debt Securities, on theone hand, and the holders of such Senior Indebtedness, on the other hand.

 

Nothing contained in this Article XV or elsewherein this Indenture, any Additional Provisions or in the Debt Securities isintended to or shall impair, as between the Company, its creditors other thanthe holders of Senior Indebtedness of the Company, and the holders of the DebtSecurities, the obligation of the Company, which is absolute and unconditional,to pay to the holders of the Debt Securities all payments on the DebtSecurities as and when the same shall become due and payable in accordance withtheir terms, or is intended to or shall affect the relative rights of theholders of the Debt Securities and creditors of the Company, other than theholders of Senior Indebtedness of the Company, nor shall anything herein ortherein prevent the Trustee or the holder of any Debt Security from exercisingall remedies otherwise permitted by applicable law upon default under thisIndenture, subject to the rights, if any, under this Article XV of theholders of such Senior Indebtedness in respect of cash, property or securitiesof the Company received upon the exercise of any such remedy.

 

Upon any payment or distribution of assets of theCompany referred to in this Article XV, the Trustee, subject to theprovisions of Article VI of this Indenture, and the Securityholders shallbe entitled to conclusively rely upon any order or decree made by any court ofcompetent jurisdiction in which such dissolution, winding-up, liquidation orreorganization proceedings are pending, or a certificate of the receiver,trustee in bankruptcy, liquidation trustee, agent or other Person making suchpayment or distribution, delivered to the Trustee or to the Securityholders,for the purposes of ascertaining the Persons entitled to participate in suchdistribution, the holders of Senior Indebtedness and other indebtedness of theCompany, the amount thereof or payable thereon, the amount or amounts paid ordistributed thereon and all other facts pertinent thereto or to this Article XV.

 

Section 15.05.        Trustee to Effectuate Subordination.

 

Each Securityholder by such Securityholder’sacceptance thereof authorizes and directs the Trustee on such Securityholder’sbehalf to take such action as may be necessary or appropriate to effectuate thesubordination provided in this Article XV and appoints the Trustee suchSecurityholder’s attorney-in-fact for any and all such purposes.

 

55

----

 

Section 15.06.        Notice by the Company.

 

The Company shall give prompt written notice to aResponsible Officer of the Trustee at the Principal Office of the Trustee ofany fact known to the Company that would prohibit the making of any payment ofmoneys to or by the Trustee in respect of the Debt Securities pursuant to theprovisions of this Article XV. Notwithstanding the provisions of this Article XV or any otherprovision of this Indenture or any Additional Provisions, the Trustee shall notbe charged with knowledge of the existence of any facts that would prohibit themaking of any payment of moneys to or by the Trustee in respect of the DebtSecurities pursuant to the provisions of this Article XV, unless and untila Responsible Officer of the Trustee at the Principal Office of the Trusteeshall have received written notice thereof from the Company or a holder orholders of Senior Indebtedness or from any trustee therefor; and before thereceipt of any such written notice, the Trustee, subject to the provisions of Article VIof this Indenture, shall be entitled in all respects to assume that no suchfacts exist; provided, however, that if the Trustee shall nothave received the notice provided for in this Section 15.06 at least twoBusiness Days prior to the date upon which by the terms hereof any money maybecome payable for any purpose (including, without limitation, the payment ofthe principal of (or premium, if any) or interest on any Debt Security), then,anything herein contained to the contrary notwithstanding, the Trustee shallhave full power and authority to receive such money and to apply the same tothe purposes for which they were received, and shall not be affected by anynotice to the contrary that may be received by it within two Business Days priorto such date.

 

The Trustee, subject to the provisions of Article VIof this Indenture, shall be entitled to conclusively rely on the delivery to itof a written notice by a Person representing himself or herself to be a holderof Senior Indebtedness of the Company (or a trustee or representative on behalfof such holder) to establish that such notice has been given by a holder ofsuch Senior Indebtedness or a trustee or representative on behalf of any suchholder or holders.  In the event that theTrustee determines in good faith that further evidence is required with respectto the right of any Person as a holder of such Senior Indebtedness toparticipate in any payment or distribution pursuant to this Article XV,the Trustee may request such Person to furnish evidence to the reasonablesatisfaction of the Trustee as to the amount of such Senior Indebtedness heldby such Person, the extent to which such Person is entitled to participate insuch payment or distribution and any other facts pertinent to the rights ofsuch Person under this Article XV, and, if such evidence is not furnished,the Trustee may defer any payment to such Person pending judicial determinationas to the right of such Person to receive such payment.

 

Section 15.07.        Rights of the Trustee; Holders ofSenior Indebtedness.

 

The Trustee in its individual capacity shall beentitled to all the rights set forth in this Article XV in respect of anySenior Indebtedness at any time held by it, to the same extent as any otherholder of Senior Indebtedness, and nothing in this Indenture or any AdditionalProvisions shall deprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness ofthe Company, the Trustee undertakes to perform or to observe only such of itscovenants and obligations as are specifically set forth in this Article XV,and no implied covenants or obligations with respect to the holders of suchSenior Indebtedness shall be read into this Indenture or any AdditionalProvisions against the Trustee.  TheTrustee shall not owe or be deemed to owe any fiduciary duty to the holders ofsuch Senior Indebtedness and, subject to the provisions of Article VI ofthis Indenture, the 

 

56

----

 

Trustee shall not be liable to any holder of such Senior Indebtednessif it shall pay over or deliver to Securityholders, the Company or any otherPerson money or assets to which any holder of such Senior Indebtedness shall beentitled by virtue of this Article XV or otherwise.

 

Nothing in this Article XV shall apply to claimsof, or payments to, the Trustee under or pursuant to Section 6.06.

 

Section 15.08.        Subordination May Not BeImpaired.

 

No right of any present or future holder of any SeniorIndebtedness of the Company to enforce subordination as herein provided shallat any time in any way be prejudiced or impaired by any act or failure to acton the part of the Company, or by any act or failure to act, in good faith, byany such holder, or by any noncompliance by the Company, with the terms,provisions and covenants of this Indenture, regardless of any knowledge thereofthat any such holder may have or otherwise be charged with.

 

Without in any way limiting the generality of theforegoing paragraph, the holders of Senior Indebtedness of the Company may, atany time and from time to time, without the consent of or notice to the Trusteeor the Securityholders, without incurring responsibility to the Securityholdersand without impairing or releasing the subordination provided in this Article XVor the obligations hereunder of the holders of the Debt Securities to theholders of such Senior Indebtedness, do any one or more of the following: (a) changethe manner, place or terms of payment or extend the time of payment of, orrenew or alter, such Senior Indebtedness, or otherwise amend or supplement inany manner such Senior Indebtedness or any instrument evidencing the same orany agreement under which such Senior Indebtedness is outstanding; (b) sell,exchange, release or otherwise deal with any property pledged, mortgaged orotherwise securing such Senior Indebtedness; (c) release any Person liablein any manner for the collection of such Senior Indebtedness; and (d) exerciseor refrain from exercising any rights against the Company, and any otherPerson.

 

Wilmington Trust Company, in its capacity as Trustee,hereby accepts the trusts in this Indenture declared and provided, upon theterms and conditions herein above set forth.

 

57

----

 

IN WITNESS WHEREOF, the parties hereto have causedthis Indenture to be duly executed by their respective officers thereunto dulyauthorized, as of the day and year first above written.

 
|   | TRINITY  CAPITAL CORPORATION           |
|--------|----------------------------------------|
|   |                                   |
|   |                                   |
|   | By                                     |   |   |
|   |                                   | Name: William C. Enloe |
|   |                                   | Title: Chief Executive  Officer |
|   |                                   |
|   |                                   |
|   | WILMINGTON TRUST  COMPANY, as  Trustee |
|   |                                   |
|   |                                   |
|   | By                                     |   |   |
|   |                                   | Name: |
|   |                                   | Title: |

 

----

 

**EXHIBIT A**

 

**FORM OF FIXED RATE JUNIOR SUBORDINATED DEBTSECURITY DUE 2035**

** **

[FORM OF FACE OFSECURITY]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THESECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATESECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST ORPARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCHREGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THEREGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCEHEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TOTHE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TOAN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITEDINVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OFRULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWNACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENTPURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANYDISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D) PURSUANT TOANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE ORTRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF ANOPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ITIN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THECOMPANY.  THE HOLDER OF THIS SECURITY BYITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOINGRESTRICTIONS.

 

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOFAGREES, REPRESENTS AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONSINVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THESECURITIES ACT.

 

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOFALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE IOF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 

 

A-1-1

----

 

1974, AS AMENDED (“ERISA”), OR SECTION 4975OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”),OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANYPLAN’S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANYPLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESSSUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDERU.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE ANDHOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.  ANY PURCHASER OR HOLDER OF THIS SECURITY ORANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE ANDHOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHINTHE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANEMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETSOF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCHPURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OFERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLESTATUTORY OR ADMINISTRATIVE EXEMPTION.

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THISSECURITY WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES ANDOTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THETRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERREDONLY IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 ANDMULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPALAMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECTWHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDEROF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OFDISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMEDTO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.

 

THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BYTHE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THEFEDERAL DEPOSIT INSURANCE CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THECLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE ASCOLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOTSECURED.

 

A-1-2

----

 

Fixed Rate JuniorSubordinated Debt Security due 2035

 

of

 

TRINITYCAPITAL CORPORATION

 

Trinity Capital Corporation, afinancial holding company incorporated in NewMexico (the “Company”), for value received promises to pay to WilmingtonTrust Company, not in its individual capacity but solely as InstitutionalTrustee for Trinity Capital Trust IV, aDelaware statutory trust (the “Holder”), or registered assigns, the principalsum of                    Dollars ($              )on November 23, 2035 and to payinterest on said principal sum from June 29,2005, or from the most recent interest payment date (each suchdate, an “Interest Payment Date”) to which interest has been paid or dulyprovided for, quarterly (subject to deferral as set forth herein) in arrears onFebruary 23, May 23, August 23and November 23 of each year commencing August 23, 2005, at aper annum rate equal to 6.88% (the “InterestRate”) until the principal hereof shall have become due and payable, and on anyoverdue principal and (without duplication and to the extent that payment ofsuch interest is enforceable under applicable law) on any overdue installmentof interest at an annual rate equal to the Interest Rate in effect for eachsuch Extension Period compounded quarterly. The amount of interest payable on any Interest Payment Date shall becomputed on the basis of a 360-day year and twelve 30-day months.  Notwithstanding anything to the contrarycontained herein, if any Interest Payment Date, other than the Maturity Date,any Redemption Date or the Special Redemption Date, falls on a day that is nota Business Day, then any interest payable will be paid on, and such InterestPayment Date will be moved to, the next succeeding Business Day, and noadditional interest will accrue for each day that such payment is delayed as aresult thereof.  If the Maturity Date,any Redemption Date or the Special Redemption Date falls on a day that is not aBusiness Day, then the principal, premium, if any, and/or interest payable onsuch date will be paid on the next succeeding Business Day, and no additionalinterest will accrue in respect of such payment made on such next succeedingBusiness Day.  The interest installmentso payable, and punctually paid or duly provided for, on any Interest PaymentDate will, as provided in the Indenture, be paid to the Person in whose namethis Debt Security (or one or more Predecessor Securities, as defined in saidIndenture) is registered at the close of business on the regular record date forsuch interest installment, except that interest and any Deferred Interestpayable on the Maturity Date shall be paid to the Person to whom principal ispaid.  Any such interest installment notpunctually paid or duly provided for shall forthwith cease to be payable to theregistered holders on such regular record date and may be paid to the Person inwhose name this Debt Security (or one or more Predecessor Debt Securities) isregistered at the close of business on a special record date to be fixed by theTrustee for the payment of such defaulted interest, notice whereof shall begiven to the registered holders of the Debt Securities not less than 10 daysprior to such special record date, all as more fully provided in the Indenture.  The principal of and interest on this DebtSecurity shall be payable at the office or agency of the Trustee (or otherpaying agent appointed by the Company) maintained for that purpose in any coinor currency of the United States of America that at the time of payment islegal tender for payment of public and private debts; provided, however,that payment of interest may be made at the option of the Company by checkmailed to the registered holder at such address as shall appear in the DebtSecurity Register or by wire transfer to an account appropriately designated bythe holder hereof.  Notwithstanding theforegoing, so long as the holder of this Debt Security is the InstitutionalTrustee, the payment of 

 

A-1-3

----

 

the principal of and interest on this Debt Security will be made inimmediately available funds at such place and to such account as may bedesignated by the Trustee.

 

So long as no Event of Default pursuant to Sections5.01(b), (e) or (f) of the Indenture has occurred and is continuing,the Company shall have the right, from time to time and without causing anEvent of Default, to defer payments of interest on the Debt Securities byextending the interest payment period on the Debt Securities at any time andfrom time to time during the term of the Debt Securities, for up to 20consecutive quarterly periods (each such extended interest payment period, an “ExtensionPeriod”), during which Extension Period no interest shall be due and payable(except any Additional Interest that may be due and payable).  During any Extension Period, interest willcontinue to accrue on the Debt Securities, and interest on such accruedinterest (such accrued interest and interest thereon referred to herein as “DeferredInterest”) will accrue, at the Interest Rate, compounded quarterly from thedate such Deferred Interest would have been payable were it not for theExtension Period, both to the extent permitted by law.  No Extension Period may end on a date otherthan an Interest Payment Date.  At theend of any such Extension Period the Company shall pay all Deferred Interestthen accrued and unpaid on the Debt Securities; provided, however,that no Extension Period may extend beyond the Maturity Date, Redemption Dateor Special Redemption Date and provided, further, however,  during any such Extension Period, the Companymay not (A) declare or pay any dividends or distributions on, or redeem,purchase, acquire, or make a liquidation payment with respect to, any of theCompany’s capital stock, (B) make any payment on or repay, repurchase orredeem any debt securities of the Company that rank *pari passu*in all respects with or junior in interest to the Debt Securities or (C) makeany payment under any guarantees of the Company that rank *pari passu*in all respects with or juniorin interest to the Capital Securities Guarantee (other than (a) repurchases,redemptions or other acquisitions of shares of capital stock of the Company (I)in connection with any employment contract, benefit plan or other similararrangement with or for the benefit of one or more employees, officers,directors or consultants, (II) in connection with a dividend reinvestment orstockholder stock purchase plan or (III) in connection with the issuance ofcapital stock of the Company (or securities convertible into or exercisable forsuch capital stock) as consideration in an acquisition transaction entered intoprior to the occurrence of (I), (II) or (III) above, (b) as a result ofany exchange or conversion of any class or series of the Company’s capitalstock (or any capital stock of a subsidiary of the Company) for any class orseries of the Company’s capital stock or of any class or series of the Company’sindebtedness for any class or series of the Company’s capital stock, (c) thepurchase of fractional interests in shares of the Company’s capital stockpursuant to the conversion or exchange provisions of such capital stock or thesecurity being converted or exchanged, (d) any declaration of a dividendin connection with any stockholder’s rights plan, or the issuance of rights,stock or other property under any stockholder’s rights plan, or the redemptionor repurchase of rights pursuant thereto or (e) any dividend in the formof stock, warrants, options or other rights where the dividend stock or thestock issuable upon exercise of such warrants, options or other rights is thesame stock as that on which the dividend is being paid or ranks *pari passu*with or junior in interest tosuch stock).  Prior to the termination ofany Extension Period, the Company may further extend such period, provided,that such period together with all such previous and further consecutiveextensions thereof shall not exceed 20 consecutive quarterly periods, or extendbeyond the Maturity Date.  Upon the terminationof any Extension Period and upon the payment of all Deferred Interest, theCompany may commence a 

 

A-1-4

----

 

new Extension Period, subject to the foregoing requirements. Nointerest or Deferred Interest shall be due and payable during an ExtensionPeriod, except at the end thereof, but interest shall accrue upon eachinstallment of interest that would otherwise have been due and payable duringsuch Extension Period until such installment is paid. The Company must give theTrustee notice of its election to begin such Extension Period at least oneBusiness Day prior to the date such interest is payable, but in any event notlater than the related regular record date.

 

The indebtedness evidenced by this Debt Security is,to the extent provided in the Indenture, subordinate and junior in right ofpayment to the prior payment in full of all Senior Indebtedness, and this DebtSecurity is issued subject to the provisions of the Indenture with respectthereto.  Each holder of this DebtSecurity, by accepting the same, (a) agrees to and shall be bound by suchprovisions, (b) authorizes and directs the Trustee on such holder’s behalfto take such action as may be necessary or appropriate to acknowledge oreffectuate the subordination so provided and (c) appoints the Trustee suchholder’s attorney-in-fact for any and all such purposes.  Each holder hereof, by such holder’sacceptance hereof, hereby waives all notice of the acceptance of thesubordination provisions contained herein and in the Indenture by each holderof Senior Indebtedness, whether now outstanding or hereafter incurred, andwaives reliance by each such holder upon said provisions.

 

The Company waives demand, presentment for payment,notice of nonpayment, notice of protest, and all other notices.

 

This Debt Security shall not be entitled to anybenefit under the Indenture hereinafter referred to and shall not be valid orbecome obligatory for any purpose until the certificate of authenticationhereon shall have been signed by or on behalf of the Trustee.

 

The provisions of this Debt Security are continued onthe reverse side hereof and such continued provisions shall for all purposeshave the same effect as though fully set forth at this place.

 

This Debt Security may contain more than onecounterpart of the signature page and this Debt Security may be executedand authenticated by the affixing of the signature of a proper officer of theCompany, and the signature of the Trustee providing authentication, to any ofsuch counterpart signature pages.  All ofsuch counterpart signature pages shall be read as though one, and theyshall have the same force and effect as though the Company had executed, andthe Trustee had authenticated, a single signature page.

 

A-1-5

----

 

IN WITNESS WHEREOF, the Company has duly executed thiscertificate.

 
|   | TRINITY  CAPITAL CORPORATION |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          |   |   |
|   |                         | Name: |
|   |                         | Title: |

 

 

Dated:                                             ,              

 

CERTIFICATE OFAUTHENTICATION

 

This certificate represents Debt Securities referredto in the within-mentioned Indenture.

 
|   | WILMINGTON TRUST  COMPANY, not in its  individual capacity but solely as the Trustee |
|--------|--------------------------------------------------------------------------------------|
|   |                                                                                 |
|   |                                                                                 |
|   | By:                                                                                  |   |   |
|   |                                                                                 | Authorized Officer |   |

 

 

Dated:                                             ,              

 

A-1-6

----

 

[FORM OF REVERSE OFSECURITY]

 

This Debt Security is one of a duly authorized seriesof Debt Securities of the Company, all issued or to be issued pursuant to anIndenture (the “Indenture”), dated as of June 29,2005, duly executed and delivered between the Company and WilmingtonTrust Company, as Trustee (the “Trustee”), to which Indenture and allindentures supplemental thereto reference is hereby made for a description ofthe rights, limitations of rights, obligations, duties and immunitiesthereunder of the Trustee, the Company and the holders of the Debt Securities(referred to herein as the “Debt Securities”) of which this Debt Security is apart.  The summary of the terms of thisDebt Security contained herein does not purport to be complete and is qualifiedby reference to the Indenture.

 

Upon the occurrence and continuation of a Tax Event,an Investment Company Event or a Capital Treatment Event, this Debt Securitymay become due and payable, in whole but not in part, at any time, within 90days following the occurrence of such Tax Event, Investment Company Event orCapital Treatment Event (the “Special Redemption Date”), as the case may be, atthe Special Redemption Price.  TheCompany shall also have the right to redeem this Debt Security at the option ofthe Company, in whole or in part, on any February 23,May 23, August 23 and November 23 on or after August 23, 2010 (a “Redemption Date”), at the RedemptionPrice.

 

Any redemption pursuant to the preceding paragraphwill be made, subject to the receipt by the Company of prior approval from theBoard of Governors of the Federal Reserve System (the “Federal Reserve”) ifthen required under applicable capital guidelines or policies of the FederalReserve, upon not less than 30 days’ nor more than 60 days’ notice.  If the Debt Securities are only partiallyredeemed by the Company, the Debt Securities will be redeemed pro rata**or by lot orby any other method utilized by the Trustee.

 

“Redemption Price” means 100% of the principal amountof the Debt Securities being redeemed plus accrued and unpaid interest on suchDebt Securities to the Redemption Date or, in the case of a redemption due tothe occurrence of a Special Event, to the Special Redemption Date if suchSpecial Redemption Date is on or after August 23, 2010.

 

“Special Redemption Price” means,with respect to the redemption of any Debt Security following a Special Event,an amount in cash equal to the percentage for the principal amount of the DebtSecurities that is specified below for the Special Redemption Date plus unpaidinterest accrued thereon to the Special Redemption Date:

 
| **Special Event Redemption During  Period Beginning On** | ** ** | **Percentage of Principal Amount** |
|----------------------------------------------------------|------------|------------------------------------|
| June 29, 2005                                       |       | 104.40                             |
| August 23, 2006                                     |       | 103.52                             |
| August 23, 2007                                     |       | 102.64                             |
| August 23, 2008                                     |       | 101.76                             |
| August 23, 2009                                     |       | 100.88                             |
| August 23, 2010                                     |       | 100.00                             |

 

A-1-7

----

 

In the event of redemption of this Debt Security inpart only, a new Debt Security or Debt Securities for the unredeemed portionhereof will be issued in the name of the holder hereof upon the cancellationhereof.

 

In case an Event of Default, as defined in theIndenture, shall have occurred and be continuing, the principal of all of theDebt Securities may be declared due and payable, and upon such declaration ofacceleration shall become due and payable, in the manner, with the effect andsubject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting theCompany and the Trustee, with the consent of the holders of not less than amajority in aggregate principal amount of the Debt Securities at the timeoutstanding affected thereby, as specified in the Indenture, to executesupplemental indentures for the purpose of adding any provisions to or changingin any manner or eliminating any of the provisions of the Indenture or of anysupplemental indenture or of modifying in any manner the rights of the holdersof the Debt Securities; provided, however, that no suchsupplemental indenture shall, among other things, without the consent of theholders of each Debt Security then outstanding and affected thereby (i) extendthe fixed maturity of the Debt Securities, or reduce the principal amountthereof or any redemption premium thereon, or reduce the rate or extend thetime of payment of interest thereon, or make payments due on the DebtSecurities payable in any coin or currency other than that provided in the DebtSecurities, or impair or affect the right of any holder of Debt Securities toinstitute suit for the payment thereof, or (ii) reduce the aforesaidpercentage of Debt Securities, the holders of which are required to consent toany such supplemental indenture.  TheIndenture also contains provisions permitting the holders of a majority inaggregate principal amount of the Debt Securities at the time outstanding, onbehalf of all of the holders of the Debt Securities, to waive any past defaultin the performance of any of the covenants contained in the Indenture, orestablished pursuant to the Indenture, and its consequences, except a defaultin payments due on any of the Debt Securities. Any such consent or waiver by the registered holder of this DebtSecurity (unless revoked as provided in the Indenture) shall be conclusive andbinding upon such holder and upon all future holders and owners of this DebtSecurity and of any Debt Security issued in exchange herefor or in place hereof(whether by registration of transfer or otherwise), irrespective of whether ornot any notation of such consent or waiver is made upon this Debt Security.

 

No reference herein to the Indenture and no provisionof this Debt Security or of the Indenture shall alter or impair the obligationof the Company, which is absolute and unconditional, to pay all payments due onthis Debt Security at the time and place and at the rate and in the moneyherein prescribed.

 

As provided in the Indenture and subject to certainlimitations herein and therein set forth, this Debt Security is transferable bythe registered holder hereof on the Debt Security Register of the Company, uponsurrender of this Debt Security for registration of transfer at the office oragency of the Trustee in Wilmington, Delaware accompanied by a writteninstrument or instruments of transfer in form satisfactory to the Company orthe Trustee duly executed by the registered holder hereof or such holder’sattorney duly authorized in writing, and thereupon one or more new DebtSecurities of authorized denominations and for the same aggregate principal 

 

A-1-8

----

 

amount will be issued to the designated transferee or transferees.  No service charge will be made for any suchregistration of transfer, but the Company may require payment of a sumsufficient to cover any tax or other governmental charge payable in relationthereto.

 

Prior to due presentment for registration of transferof this Debt Security, the Company, the Trustee, any Authenticating Agent, anyPaying Agent, any transfer agent and the Debt Security registrar may deem andtreat the registered holder hereof as the absolute owner hereof (whether or notthis Debt Security shall be overdue and notwithstanding any notice of ownershipor writing hereon) for the purpose of receiving payment of or on account of theprincipal hereof, premium, if any, and interest due hereon and for all otherpurposes, and neither the Company nor the Trustee nor any Authenticating Agent norany Paying Agent nor any transfer agent nor any Debt Security registrar shallbe affected by any notice to the contrary.

 

No recourse shall be had for the payment of theprincipal of or premium, if any, or the interest on this Debt Security, or forany claim based hereon, or otherwise in respect hereof, or based on or inrespect of the Indenture, against any incorporator, stockholder, officer ordirector, past, present or future, as such, of the Company or of anypredecessor or successor corporation, whether by virtue of any constitution,statute or rule of law, or by the enforcement of any assessment or penaltyor otherwise, all such liability being, by the acceptance hereof and as part ofthe consideration for the issuance hereof, expressly waived and released.

 

The Debt Securities are issuable only in registeredcertificated form without coupons.  Asprovided in the Indenture and subject to certain limitations herein and thereinset forth, Debt Securities are exchangeable for a like aggregate principalamount of Debt Securities of a different authorized denomination, as requestedby the holder surrendering the same.

 

All terms used in this Debt Security that are definedin the Indenture shall have the meanings assigned to them in the Indenture.

 

THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THEINDENTURE AND THE DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWSPRINCIPLES THEREOF.

 

A-1-9

----

 

**EXHIBIT B**

 

FORM OF CERTIFICATE

OF OFFICER

OF

TRINITY CAPITAL CORPORATION

 

Pursuantto Section 3.05 of the Indenture between Trinity Capital Corporation, asissuer (the “Company”), and Wilmington Trust Company, as trustee, dated as of June 29,2005 (as amended or supplemented from time to time, the “Indenture”), theundersigned certifies that he/she is a principal executive officer, principalfinancial officer or principal accounting officer of the Company and in thecourse of the performance by the undersigned of his/her duties as an officer ofthe Company, the undersigned would normally have knowledge of any default bythe Company in the performance of any covenants contained in the Indenture, andthe undersigned hereby further certifies that he/she has no knowledge of anysuch default for the year 20    [,except as follows: *specify each such default and the nature thereof*].

 

Capitalizedterms used herein, and not otherwise defined herein, have the respectivemeanings ascribed thereto in the Indenture.

 

INWITNESS WHEREOF, the undersigned has executed this Certificate as of                   ,20   .

 

 
|   |   |   |
|--------|--------|--------|
|   |   |   |
|   | Name:  |   |   |   |
|   |   |   |
|   | Title: |   |   |   |

 

B-1-1

----